[dropcap]C[/dropcap]LIMATE change is among the most challenging issues faced by humanity. All countries are affected by the direct/indirect impacts of climate change in one or other way. The issue of climate change has grabbed the attention of the world today as it has never before. It has become a major scientific as well as political topic of our times. Despite high profile international action to slow its progress, the political will to address its current impacts remains weak.
Unfortunately, the countries which are least responsible for climate change are also bearing the most severe consequences of it. Climate change is increasingly causing storms, droughts and floods, resulting in the rise of sea levels and having a severe impact on food production, and thus, forcing a large number of people to flee their homes and lands for sanctuary in safer lands. However, there is no consensus on whether these people can be called ‘climate refugees’ – as international law does not acknowledge such a term.
Climate change poses a formidable challenge for all countries and it is more likely to heighten the scale of political turmoil, state instability and mass migration in the future, particularly in the regions with poor governance and existing state fragility. Climate-induced migration has been recorded in many regions around the world. As per the Internal Displacement Monitoring Centre’ (IDMC) report, 23.5 million people were forced to relocate around the world in 2016 alone due to extreme weather conditions and as a result of natural disasters. The Office of the United Nations High Commissioner for Refugees (UNHCR) predicts even greater displacement owing to climate change in the years to come. The Asian Development Bank in its report predicted that approximately 37 million people in India, 22 million in China, and 21 million in Indonesia will be at risk of displacement from rising sea levels by 2050. The World Bank in its report also predicted that around 143 million people could be displaced due to climate change by 2050.
Climate change is a trans-border issue and thus needs a trans-border solution. The multidimensional and complex challenges posed by climate change must be factored into international norms and legal instruments dealing with displacement and migration. International environmental law and international human rights law can be a robust and appropriate mechanism to support developing countries in their response to the adverse impacts of climate changei]. However, under the present international law, there is no agreement, convention or treaty which deals with climate-induced migrants.
The Asian Development Bank in its report predicted that approximately 37 million people in India, 22 million in China, and 21 million in Indonesia will be at risk of displacement from rising sea levels by 2050. The World Bank in its report also predicted that around 143 million people could be displaced due to climate change by 2050.
The most recent international climate agreement, the Paris Agreement 2015, contains a number of ambitious provisions, however, the one urgent area where it does not go far enough is climate-induced migration. Also, the New York Declaration on Refugees and Migrants 2017 which is the latest international agreement under the aegis of United Nations for the protection of rights of refugees and migrants has failed to address the issue of climate refugees – millions of migrants who are displaced by natural and slow onset environmental changes. Even in the time when climate change is becoming a driving force for people to leave their homes, the rules and principles are written only for those who are escaping war zones.
Climate refugees are the human face and human cost of the climate change but they are not receiving the international attention and resources they demand.
Climate Refugees under International law
There is no standard definition and no such category of refugees exists under international law. Legally the concept of ‘climate refugee’ does not exist, despite the term being in frequent use. Moreover, there is no consensus that ‘climate refugees’ are ‘refugees’ at all. The need for a definition is a crucial step in the conceptualisation of climate migration and the development of policy responses to address these flows.
The United Nations Convention relating to the Status of the Refugee 1951 (Refugee Convention, 1951) defined a ‘refugee’ as any person who
“as a result of events occurring before 1 January 1951 and owing to 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 such fear, is unwilling to return to it”.
It was Essam El-Hinnawai, who coined the word ‘environmental refugees’ in a report[ii]prepared for the United Nations Environment Programme in 1985. He defined ‘environmental refugees’ as:
“Any person who has been forced to leave their traditional habitat, temporarily or permanently, because of a marked environmental disruption (natural and/or triggered by people) that jeopardised their existence and/or seriously affected the quality of their life are”.
On the basis of this definition given by Essam El-Hinnawai, one may identify three categories of refugees as environmental refugees: (a) those displaced temporarily because of an environmental stress, such as an earthquake or a cyclone, and who will return to their habitat once conditions normalise; (b) those who have been permanently displaced because of a permanent change caused to their habitat, such as the establishment of dams and associated man-made lakes; and (c) those who migrate permanently or temporarily in quest of an improved quality of life because their original habitat can no longer meet their basic needs[iii].
On the basis of the definition given by Essam El-Hinnawai, one may identify three categories of refugees as environmental refugees: (a) those displaced temporarily because of an environmental stress, such as an earthquake or a cyclone, and who will return to their habitat once conditions normalise; (b) those who have been permanently displaced because of a permanent change caused to their habitat, such as the establishment of dams and associated man-made lakes; and (c) those who migrate permanently or temporarily in quest of an improved quality of life because their original habitat can no longer meet their basic needs.
The International Organisation for Migration also released a ‘working definition’ of ‘environmental migrants’ in 2008, but this definition has not been adopted under any national or international law. It says that,
“Environmental migrants are persons or groups of persons who, predominantly for reasons of sudden or progressive change in the environment that adversely affects their lives or living conditions, are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their country or aboard”.
There are also cases where due to extreme climate conditions people move within the borders of their countries. These affected populations are referred to as “internally displaced” population and they remain under the protection of their government and continue to be subject of domestic laws and national policy and thus they are overshadowed. But there is an obvious link between internal and cross-border displacement, the exact push and pull factors that explain how someone who is an internally displaced person one day can become a refugee, an asylum seeker or an international migrant the next day is still unclear.
Under international law, only those people who have fled their countries because of war or persecution are entitled to refugee status. People who are forced to leave their homes because of climate change, or who leave their homes because climate change has made it harder for them to make a living, do not fall under the status of ‘refugee’ as defined in Article 1 of the Refugee Convention 1951. The law does not offer them much protection.
Under international law, only those people who have fled their countries because of war or persecution are entitled to refugee status. People who are forced to leave their homes because of climate change, or who leave their homes because climate change has made it harder for them to make a living, do not fall under the status of ‘refugee’ as defined in Article 1 of the Refugee Convention 1951. The law does not offer them much protection at all unless they can show they are fleeing a war zone or face persecution if they are returned home.
In recent times, it is seen that even countries which are signatories to and have ratified the Refugee Convention 1951 do not follow it in the true spirit which makes the whole problem more complex and difficult. The refugees have to either move courts or other adjudicatory bodies to claim their rights under the said convention. For climate refugees, the situation is more difficult and harsh; neither do they have any legal recognition nor do they have any legal rights under any international or regional instrument. A judgment of the New Zealand Supreme Court in the Kiribati case[iv]is pertinent to this discussion. In this preferred case, the court rejected an application for grant of refugee status on grounds of climate change in the Pacific Island nation of Kiribati. The reasoning of the Court was backed on the lack of environmental degradation as ground under the Refugee Convention 1951. However, New Zealand was not the first state to refuse entry to an environmental refugee; this has previously been done by the Australian Courts[v], and even by the Indian government[vi]. Moreover, there are instances where the state raises respect for sovereignty as a ground for rejecting refugees and argues that they have the sole discretion to determine whether a foreigner should be given entrance to their dominion[vii].
Climate Change, Refugees and India
How vulnerable is India to climate change and climate refugees? India is growing at a rapid pace and in the future, will be working hard towards eradicating poverty and giving its people a satisfactory standard of living, a major goal since its independence in August 1947. But climate change is likely to slow down India’s growth towards reaching this goal and would make it more vulnerable than any other country.
In addition to these vulnerabilities, the continuous natural disasters, political instability and poor resilience infrastructure in the neighbouring countries are continuously increasing the burden on India. If we look at India’s engagement on climate change over the last couple of decades then we largely observe a story of continuity; the period leading up to the 2015 Paris Agreement saw serious reconsiderations of views, both within and outside government, on what India’s’ interests and positions on the issue ought to be. However, if the world’s second most populous country collapses environmentally then it will have a devastating impact on the entire region.
India has been a safe haven for climate refugees from Bangladesh and Nepal who mostly migrate to metro cities and end up in decrepit slums. Given the issue of India’s own climate-induced internal migration and already saturated metro cities – providing domestic and international climate refugees with a basic standard of living is impossible. India in the past has been flooded with climate refugees. The examples of this may include, the migration of Chakmas and other tribes of Bangladesh into parts of India’s north-east, and that of poor Bangladeshis particularly from the Khulna and Rajshahi divisions into various parts of India[viii].
Researchers in Assam, India and in Bangladesh have estimated that around a million people have been rendered homeless due to erosion in the Brahmaputra river basin over the last three decades. Sunderbans, the world’s largest mangrove forest and a low-lying delta region in the Bay of Bengal where some 13 million impoverished Indians and Bangladeshis live, is particularly susceptible to climate change. It is already suffering increased incidents of floods, cyclones, saltwater infusion and rises in sea levels, resulting in land erosion and submergence of islands. On the other hand, the problems of droughts, forest fires and flooding in Nepal has been magnified by the impacts of climate change, resulting in mass loss of habitats and livelihood.
Researchers in Assam, India and in Bangladesh have estimated that around a million people have been rendered homeless due to erosion in the Brahmaputra river basin over the last three decades. Sunderbans, the world’s largest mangrove forest and a low-lying delta region in the Bay of Bengal where some 13 million impoverished Indians and Bangladeshis live, is particularly susceptible to climate change.
Also, in the recent past, a series of powerful hurricanes originating from the Bay of Bengal have increased the danger and vulnerability of densely populated cities on the Eastern Ghats of India and has had a severe impact on Bangladesh. Rising sea levels and dying coral reefs are making the isles of the Maldives inhabitable and within a decade the circumstances would be such that it will force people to flee these islands, as reports claim.
Given the above circumstances and vulnerabilities, it is in India’s interest to work on a regional policy framework for managing any such exodus of climate refugees. Former minister, Environment and Forests, Suresh Prabhu in his commentary[ix]on ‘Climate Change and Parliament’ pushes that, “all the international agreements and commitments should be subject to compulsory parliamentary ratification in India. We can even use the Standing Committee route to create more space for debate on climate change”. This could possibly be a solution for bringing India under the international legal regime and also to lead India to participate more in formulating these governing policies. In future, India could be a driving force not just in formulating these international principles but also as a regulator on these issues. For this purpose, what we need is a strong mandate on the subject, commitment and visionary leadership.
India can lead the world by stimulating the debate on the subject and can ease the regional tensions by formulating a model framework to deal with climate refugees. We can play an important role in negotiating for the rules and principles for the protection of climate-induced migrants and can be an influential voice to bring out a coalition for a strong mandate on climate refugees through its clear and strong vision in international climate negotiations.
[i]Stazin Chostak, ‘Climate change and Human Rights: The Meeting of the Twains’ (2016) JLJ55-63
[ii]Essam El-Hinnawi, Environmental Refugees(United Nations Environment Programme, Nairobi, 1985)
[iii]Parth S Ghosh, Migrants,Refugees and the Stateless in South Asia, p. 44-45 (Sage Publications, New Delhi, 2016)
[iv]Teitota v. Chief Exec. of the Ministry of Bus Innovation Emp’t (2013) NZIPT 800413(Kiribati Case)
[v]Mohammed Matahir Ali v. Ministry of Immigration  FCA 887 (Aus.)
[vi]Imtiaz Ahmed, ‘Environmental Refugees and Environmental Distress Migration as a Security Challenge for India and Bangladesh’ in Hans Guntur Brauch, Ursula Oswald-Spring, John Grin, Czeslaw Mesjasz, Patricia Kameri-Mbote, Navinta Chadha Behera, Bechir Chourou, Heinz Krummenacher (eds.), Facing Global Environmental Change: Environment, Human, Energy, Food, Health and Water Security Concepts(Springer, 2009)
[vii]Nishimura Ekiu v. US 141 US 651 (12 S. Ct. 336, 35 L.E.d. 1146)
[viii]Op. Cit. iv (Parth S. Ghosh)
[ix]Suresh Prabhu, ‘Climate Change and Parliament: Excerpts from the Lok Sabha and Rajya Sabha’ in Navroz K. Dubash (ed.) Handbook of Climate Change and India: Development, Politics and Governance(OUP, New Delhi, 2012)