CLIMATE REFUGEES AND THEIR NEGLECT IN INTERNATIONAL LAW
Climate change has led to a drastic increase in the frequency and intensity of extreme climatic events. More than 24 million people have been forced to migrate due to climate and weather-related disasters since 2016. Migrations due to climatic disruptions are expected to increase exponentially due to the exacerbation of climate change caused by human activities. According to estimates, climatic disruptions could cause the displacement of more than 200 million people by 2050. The true significance of this figure can be grasped by the fact that it represents a ten-fold increase over today’s documented refugee and internally displaced population.
Rising sea levels, frequent floods, droughts, desertification, and powerful storms will be among the primary reasons behind this change, and will, permanently displace millions of people. One such instance is the migration of the people living in low-lying island countries, who will have no option other than migrating to other countries, with the inevitable rise in sea-level. However, there seems to be a lacuna in the international law framework with regards to mechanisms for addressing the grievances of climate refugees, despite the existence of a substantial population of vulnerable people in island countries and the potential crisis awaiting countries.
The article, in the first section argues that this lacunae can be attributed to anachronistic international legislations, such as 1951 Convention relating to the Status of Refuges, which do not account for the requirements of climate refugees. The article further argues that indeterminate nature of climate-change induced migration and lack of a political will amongst states to implement the necessary reforms prevent any initiative to rectify the situation. Lastly, the article puts forth the proposition that a specialized climate refugee convention would be the most suitable solution to tackle the situation.
Anachronistic International Legal Instruments
Various steps can be taken to minimize the damage caused by climatic aberrances but lack of a well-oiled mechanism to redress the grievances of the victims would infinitely aggravate their suffering. For instance, Tuvalu is a small island nation in the Southern Pacific inhabited by 11,000 people which is predicted to get submerged completely due to rising sea level in the next 50 years. In such a scenario, the only viable recourse can be migration to other countries but the lack of a mechanism to facilitate such migration is likely to accentuate their problems tremendously. This is the exact problem “climate refugees” are facing. Although they flee from catastrophic events that imperil their human rights, they do not come within the ambit of the traditional legal definition of “refugee”, thereby depriving them of the rights available to refugees under various international conventions. The 1951 Convention relating to the Status of Refugees and its 1967 protocol has been described as the “cornerstone” and “centre of international legal framework for the protection of refugees”. The convention defines the term ‘refugee' as “someone 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.” This means that ‘climate refugees’, who migrate due to catastrophic climatic events have no recognition under the Convention as it stands today. Even the discourse about whether climate displacements come within the ambit of the convention revolves around whether climate change can be considered “persecution”, which is dominated by opinions holding that the aforementioned group of persons cannot be classified as “persecuted”. Since the Convention along with its 1967 protocol are the only recognized instruments of international law to redress the grievances of the displaced, climate refugees have, effectively found themselves out of the legal framework of international law.
1. Indeterminate nature of Climate Migration
Outmoded legislations can be amended to provide climate refugees with the necessary safeguards. However, difficulty in establishing a concrete correlation between climate change along with other environmental factors and migration hinders the introduction of any such reform. The variability of natural phenomenon and their interaction with other socio-political factors makes it difficult to determine the extent to which migration might occur due to climatic factors. This is exemplified by the wide range of predictions, regarding the displacement of people due to climatic factors, which lie between 50 million to 200 million by the year 2050. This, coupled with regional variance in capacity to withstand climate change, makes it difficult to distinguish climate change displacements from other kinds of environmental displacements. The difficulty in determining the true extent of climate displacements can be understood by the fact that some scholars refrain from using ‘climate displacements’ and instead employ the term ‘environmental displacements’.
However, there is a substantial population of people that will inevitably become climate refugees which in itself justifies recognition and grant of protection. The ideal example of this is the case of small island states under the threat of submergence, where internal displacement will be impossible.
2. Lack of Political Will
Of late, several countries have become reluctant to perform their obligations as laid down in international treaties and conventions relating to refugees, due to the increasing social and economic costs of the burgeoning number of conventional refugees. Several countries are beginning to flout their obligations under the Refugee Convention by either barring or severely restricting the inflow of refugees. For instance, Hungary has recently passed laws that are in breach of the UN Refugee Convention, the European Convention on Human Rights, and EU asylum directives while Poland has also been found to be denying access to asylum procedures thereby restricting asylum to refugees. The United States, France, Italy, and Australia are among other notable violators of obligations under the Refugee Convention. It seems highly unlikely that there will be any eagerness on part of the states to widen the scope of the 1951 Refugee Convention to include climate refugees. This is evident by the refusal of UNHCR to support the Refugee Convention and has adopted the reasoning that ‘refugee’ is a legal term with a settled meaning centred on persecution, the expansion of which would weaken the existing notion of the right to asylum as a universally recognized human right because the discretionary power of the government to deny or accept asylums would also increase.
There have been initiatives by some countries with regards to offering legal protection to “climate refugees”. For instance, New Zealand has established a special annual quota of citizens from Tuvalu to be offered residence in the country. However, these initiatives come with their own reservations. New Zealand’s Pacific Access Category that was created to enable Tuvaluans to migrate to New Zealand required applicants to be between eighteen to forty-five years of age with “an acceptable offer of employment” and basic English proficiency. There are some regional conventions as well which do not exclude climate refugees from their framework. These include the 1969 Organization of African Unity Refugee Convention, which offers an inclusive definition of refugees. But these measures are not ample enough to address the concerns arising out of a global problem such as climate displacement.
Taking into consideration all the aforementioned grievances, it can be concluded that climate refugees do not have access to legitimate legal protection under the prevailing international law system and mechanisms.
Suggested Potential Reforms
The current situation necessitates the formulation of an innovative, mutually acceptable and thereby widespread enforceable protection mechanism. With climate change projected to exacerbate displacement to unprecedented levels, a dedicated legal regime in the form of a specialised climate refugee convention tailored to the needs of those displaced is not only a crucial part of a larger adaption strategy but an essential short-term alleviation measure. While it has been suggested that an amendment to the 1951 Convention would be the most appropriate remedy, a new convention would have substantial freedom in employing specific tools and measures to meet the unique needs of climate refugees. For instance, one of the proposed provisions can be one of burden-sharing mechanism based on the principal of subsidiarity, where countries would distribute their responsibilities according to their capabilities and limitation. Such a provision would make the a protection framework for climate refugees more palatable to states.
The proposition of developing a convention from scratch is bound to face opposition from a few states due to the tremendous efforts required to get various stakeholders to ratify the convention and to enforce it diligently. However, it is probable that the states and other stakeholders would agree to a novel international instrument. This is because such an instrument would allow states to formulate a mutually acceptable legislation that would also provide an effective framework for climate refugees. For instance, states which would receive climate migrants on the implementation of a legal framework for them may not want to encourage climate refugees to migrate and may oppose and such reform. However, as history has shown migrants will find various ways to cross international boundaries despite governmental efforts to stop them. In such a situation, receiving states would want to avail of the assistance available to them in the form of a burden sharing mechanism or financial assistance through a global fund. Therefore, it would be in their self-interest to contribute to and accept a novel Climate Refugee Convention.
It should be noted that the creation of a Climate Refugee Convention will entail certain difficulties as well. Jane McAdam argues that an international convention for climate refugees would channel vast amounts of resources for convention-related advocacy at the expense of other appropriate and community-attuned responses. However, such an assertion is based on the assumption that such a convention would not take cognizance of and provide assistance to regional efforts aimed at providing protection to climate refugees, which may not turn out to be the case since the same would not be feasible for a proper response to the situation. Taking into consideration, all the advantages and challenges that a Climate Refugee Convention entails, it would not be unreasonable to consider it as a suitable solution for the situation.
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This article has been written by Somanshu Shukla, who is currently enrolled in the B.A.LL.B (Hons.) Programme at National Law University, Delhi.