This article is written by Daksh Ghai, from Symbiosis Law School, Noida. The article provides a brief overview of the mechanism of climate change, and the steps taken by various organizations to protect the interests of people who have been displaced internally and across borders as a consequence of natural calamities and to mitigate these climate changes.

Defining climate refugees

Climate change is among the most critical issues of the twenty-first century. Climate refugees are people who are obliged to travel to different regions or cross borders as a result of catastrophic climatic and natural events. As a result of rising temperatures and sea levels, governments all over the world will be compelled to witness massive and unprecedented human displacement, for which international law currently lacks a method and a framework. According to figures issued by the United Nations High Commissioner for Refugees (UNHCR) in April 2021, 21.5 million people have been displaced by climate change-related disasters since 2010.

Displacement due to climate change

Displacement occurs when people are forced to leave their homes. Displacement can occur both within and across borders. If the displacement occurs within the country, it is the country’s primary responsibility to ensure that the displaced person’s human rights are protected; however, if the displacement occurs across borders, there are no provisions in place to protect the migrants’ rights. Economic, political, social, demographic, and environmental factors can all contribute to displacement. Climate change is a natural phenomenon, but human activities such as the release of greenhouse gases have contributed to it. Climate change causes glaciers to melt, floods, and droughts. Desertification and rising sea levels are forcing people to relocate, either internally or across borders. Movement in response to environmental and climate change is a normal human adaptation strategy. The Intergovernmental Panel on Climate Change (IPCC) was the first one to discuss the effects of climate change on human beings in 1990. It mentioned that rising sea levels, coastal flooding, and agricultural disturbances would probably relocate several people.

The responsibility of the country of origin and third countries in terms of protecting climate refugees

International Human Rights obligations

The State of origin is nonetheless obligated to respect, safeguard, and fulfil human rights during and after an environmental displacement crisis (exceptions exist in cases of public emergency). Human Rights and Natural Disasters: Operational Guidelines (2006) provides us with knowledge on how human rights apply before, during, and after natural disasters. The Guiding Principles on Internal Displacement apply to internal environmental refugees. While it is unclear whether these ideas are part of customary international law, they do reflect actual international duties to some extent. Their added value is demonstrated, for example, by demonstrating how human rights provisions obligate the State of origin to take mitigating measures during “internal environmental displacement.” As a result, they are an important tool in the development of national policies and legislation. However, most states affected by internal displacement’s incapacity or unwillingness to fulfil their commitments to internally displaced persons remains a concern. 

Presently, the international human rights regime appears directed towards establishing obligations on the part of the State of origin for those who reside on its territory or are subject to its jurisdiction. Third-country obligations can be derived from international aid and cooperation duties in the context of economic, social, and cultural rights (ESCR); these commitments are in addition to those of the State of origin.

It is widely acknowledged that those extraterritorial obligations exist in relation to the need to uphold human rights (e.g. a promise by foreign countries not to engage in any actions that could compromise the fulfilment of ESCR in the place of origin, such as development projects) because there is currently no such universal provision in international law, efforts are being made to deduce a right to a healthy environment indirectly as a component of other human rights that presuppose a healthy environment; these other human rights can include civil and political rights (e.g. the right to life, right to private life), ESCR (e.g. the right to health), and collective rights. 

While state responsibilities to prevent individuals from moving because of climate change are not directly stated in treaty law, they can be established through the interpretation of such rights (at the regional and universal level). Obligations are clearly only in place when environmental changes have a negative impact on an individual’s rights. However, no general declarations about the actual scope and content of those obligations can be made at this time due to discrepancies in the interpretation of numerous rights from different legal sources and at different levels (regional/global) by different treaty bodies. The interpretation imposes the following obligations:

Obligations to prevent environmental change situations

International treaties on the environment contain a set of commitments to prevent transboundary environmental change. The UN Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol (KP) are significant in the context of climate change because they provide extremely specific duties addressing climate change prevention, such as greenhouse gas emission reductions. The Montreal Protocol to Reduce Ozone Depleting Substances, the Geneva Convention on Long-Range Transboundary Air Pollution, and the Convention to Combat Desertification all have additional commitments for the prevention of environmental changes.

As a result, states must take all reasonable steps to prevent or mitigate environmental damage in other countries. In the absence of specific contractual requirements, this rule is of specific importance. However, it appears to be a concern because such preventative commitments do not entail absolute obligations to limit damage; rather, they only require States to adopt actions that meet a particular degree of care. The precise scope of the duties may thus only be determined in each case and is highly dependent on a State’s economic capabilities.

Obligations relating to adaptation to changing environmental conditions

Contractual obligations exist in the area of climate protection for third countries and the country of origin in relation to adaptation measures, i.e. measures aimed at reducing vulnerability to climate change-induced environmental change, such as the formation of capacities or institutions to better cope with foreseeable damage. However, the implementation of such duties by poor countries is reliant on financial assistance from industrialised countries. The precise scope of adaptation duties under the UNFCCC and the Kyoto Protocol is uncertain; they must only be “adequate.” 

Improving the adaptability of a country involves measures to enhance health and social policies, agriculture and forestry, ecosystems, watercourses, and coastal and marine areas. It’s unclear if resettlement qualifies as an adaptation measure under the UNFCCC and KP. In the framework of disaster prevention, the need for preventive measures in terms of adaptation has been emphasised even more. The emphasis on disaster mitigation is reflected in international mechanisms as well as recent regional accords. The legal regulations in the domain of disaster prevention are, on the whole, fragmented. As far as regional binding agreements are concerned, ratification rates are low. In the realm of environmental disaster prevention through adaptation and readiness, there are no global binding instruments. 

Obligations relating to mitigation and preventive obligations after a climate-induced displacement has occurred

The mitigation of environmental and climate damages is only a rudimentary responsibility in international treaties relating to environmental protection. There are no comprehensive compensation rules in place. However, if specific criteria are met, an obligation to compensate for losses caused by violations of primary international norms might be derived from principles of state responsibility. The notion of “preparedness” is rapidly becoming relevant in the sphere of disaster preventive procedures such as risk assessments, awareness-raising, and concrete task allocation in the event of a disaster should be taken before a disaster occurs to lessen its possible negative consequences. The need to notify people about approaching calamities as soon as possible is critical for minimising harm. This requirement can be found in a number of international treaties; however, documents embodying general obligations in relation to disaster prevention and relief now only exist on a regional level, with their ratification status and, as a result, their practical relevance being restricted.

The primary responsibility for delivering humanitarian help resides with the country of origin, and only if it agrees third parties can be allowed to give humanitarian aid. An obligation of the State concerned to claim humanitarian aid does not exist de lege lata. However, there is a recent tendency toward revising this viewpoint, particularly in light of the country of origin’s utter inability to cope with a disaster. Foreign countries have the right to provide assistance; but, humanitarian help can only be imposed by the UNSC at this time. Some international treaties are evolving to include a requirement that the country of origin receive aid if it is unable to defend its citizens.

Role of UNHCR in mitigating climate induced migration

Climate change has several consequences that cause displacement and worsen living situations. In many regions of the world, limited natural resources, such as drinking water, are becoming increasingly scarcer. Crops and animals struggle to thrive when temperatures become too hot and dry, or too cold and wet; in such conditions, climate change can function as a threat multiplier. The UNHRC is a leader in protecting and aiding persons who have been forcibly displaced, sending teams to help with registration, documentation, reuniting the families, and housing, sanitation, and food. According to the UNHCR, we must spend now in preparedness to avoid future crises.

Three action pillars

Law and policy

UNHCR has played a critical part in the development of laws and policies relevant to refugees at the international, regional, national, and sub-national levels over time, and will continue to provide legal advice, guidance, and support to the different world organizations in developing additional safety for refugees and other people displaced in disasters. Some of the possible actions are:

1. UNHCR takes the lead in providing legal counsel and assisting states in constructing legal frameworks and structures to prepare for and respond to displacement.
2. UNHCR will pursue research and evidence-based advocacy on issues such as cross-border displacement and the possibility of statelessness.
3. UNHCR will, as a preventative and adaptive strategy of last resort, advise governments about planned evacuation away from unsafe or unsuitable regions.
4. Keeping track of legal and policy developments.

Operations

Every year, disasters caused by climate and weather-related dangers force millions of people to flee their homes. We will all be needed to reduce and manage risks by modifying our internal processes and activities to meet UNHCR’s goal. Increasing the preparedness and resilience of displaced individuals and host communities to the consequences of climate change by reducing the environmental pollution in displacement contexts. During the operating stage, the following actions may be taken:

1. Increasing access to and usage of renewable energy and energy-efficient technologies  will help in less global warming and improved public health.
2. Working with governments and other stakeholders to promote afforestation, reforestation, and sustainable agriculture to prevent soil erosion and reduce carbon dioxide in the air.
3. Planning for anticipated internal and cross-border displacement, including pre-positioning resources and supply chain operations. 
4. The United Nations High Commissioner for Refugees (UNHCR) aspires to improve protection for displaced individuals and their hosts by investing in proactive measures to reduce and manage risks and support progress toward solutions.

UNHCR’s environmental footprint

UNHCR intends to reduce its greenhouse gas (GHG) emissions and any adverse environmental consequences of its operations. Minimizing environmental damage helps to achieve global climate action while also safeguarding the natural resource-based livelihoods, health, and security of displaced people and host communities.

Greening the blue strategy

Various other strategies would be included in this strategy to help UNHCR monitor their power and water consumption, greenhouse gas emissions, and come up with solutions and alternatives to help them make decisions about installing renewable energy sources at their offices to achieve both carbon and financial savings. 

Discrimination against migrants

The 1951 Convention on the Status of Refugees is the fundamental international institution that safeguards the legal rights of displaced people. The vast majority of climate migrants will have no protection under the International Law as under Article 1. Refugees must according to  Article 1 of the 1951 Convention have a well-founded fear of persecution from their government based on “race, religion, nationality, or membership of a specific social group or political viewpoint,” This would prove problematic, as climate change affects all people in a nation regardless these factors and as a result, the climate refugees will not be provided the access to the judicial system, public education, and a right to work in the foreign state. 

The principle of non-refoulment provides that no refugee shall be expelled or returned to the territory where they will have to face persecution on the grounds of four statuses (“race, religion, nationality, or membership of a specific social group or political viewpoint) the climate refugees, as a result, will not be provided with any protection under the non-refoulment protection principle as they do not fall under the definition of a refugee.

Bargaining powers of the refugee`s home countries

States’ environmental human rights duties have been derived either from a substantive right to a healthy environment, from procedural rights (e.g., rights to information and participation), or from rights that presuppose a healthy environment. Currently, a substantive right to a healthy environment exists only at the regional level (contractual and customary law); this right has yet to be adequately articulated on a global level; as a result, no clear universal State obligations can be identified. The international protection of potential refugees’ nationals is restricted due to the poor bargaining power of their home nations. Despite the existence of international protective systems. 

In the case of Somalia

Somalia had an unstable political government and frequent food shortages as a result of the ongoing conflict, which was fuelled by the region’s climatic vulnerability, which makes it prone to droughts. Drought frequency and intensity in the African continent have progressively increased over the last half-century. 

In the years 2010-2012, Somalis were displaced in large numbers due to a complex combination of violence, a lack of governmental institutions, and drought. While the majority remained internally displaced, a considerable number of people sought shelter in Kenya. Initially, Kenya recognised the arriving Somalis as refugees and granted them a prima facie refugee status. In 2012, Kenya had 512,000 Somalis, the majority of them lived in the Dadaab refugee camp, which was the world’s largest at the time. The Dadaab complex was also subject to the same environmental conditions that the Somalis were fleeing from. The same drought that drove Somalia to Dadaab also contributed to 3.8 million Kenyans starving.

The Kenyan authorities were immediately burdened by the growing vulnerability of the local population, interwoven with developing tensions with the migrants, and the constant influx of fresh refugees. Despite the fact that Kenyan authorities initially granted Somalis refugee status, they never permitted them to merge into Kenyan society. The authorities removed the prima facie status and attempted to close the Dadaab camp multiple times. Somalis in Kenya demonstrate the refugee country’s lack of negotiating power. While Kenya first supported Somalia’s crisis, it did so not because Somalia had any bargaining leverage, but rather because Kenya was a signatory to international protection treaties.

Small pacific island states Inhabitants in New Zealand

Ioane Teitiota was a citizen of the Republic of Kiribati, which is located in the Central Pacific Ocean and is one of the countries most vulnerable to rising sea levels. In 2012, he petitioned for refugee and/or protected person status in New Zealand, claiming that rising sea levels and other effects of climate change have made living circumstances in Kiribati unstable. 

According to him his life in Kiribati has grown so unbearable that returning him to New Zealand would be a violation of his right to life under the New Zealand`s Immigration Act (2009). His asylum application was dismissed by the Immigration and Protection Tribunal, the High Court, the Court of Appeal, and the Supreme Court of New Zealand, and he and his family were deported to Kiribati in 2015. He then filed for a review in the UNHRC committee, the committee upheld New Zealand`s decision and ruled that the return had not been taken in violation of his rights. Nonetheless, the committee reminded states that they must refrain from deporting a person if there are significant grounds to believe there is a serious risk of irreparable harm, as recognised by Articles 6 (right to life) and Article 7 (right to liberty, prohibition of torture or cruel, inhuman or degrading treatment or punishment).

Murillo Saldías and Others v. Spain

In the case of Murillo Saldías and Others v. Spain (2006), the petitioners were survivors of an accident at the Biescas campsite in the Spanish Pyrenees, when 87 people died in heavy flooding caused by excessive rain. The disaster claimed the lives of the first applicant’s parents, brother, and sister, while the other applicants were all injured. The petitioners specifically protested that Spain had not taken all of the essential precautions to protect users of the Biescas campsite. They said that despite being aware of the possible dangers, the authorities had granted authorization to use the land.

The application was ruled inadmissible by the court. Noting that the Audiencia National Court had granted the first applicant compensation at an amount that could not be considered unreasonable and that the Supreme Court would very certainly confirm or even enhance the amount when it considered the applicant’s appeal on legal grounds, it was decided that, following the Audiencia Nacional’s judgement, he could no longer claim to be a victim of a violation of the Convention’s rights under Article 34 (right of individual petition). The remaining petitioners had only entered the criminal case as civil parties and had declined to file administrative complaints against the authorities before filing their application with the Court. As a result, they had run out of options at home.

Ignorance of local governments towards climate change and its effect on the population

Local governments can be said to be ignorant of climate change because there is no planning on their part. The first step governments must take is to determine the locations most vulnerable to unexpected natural disasters, as well as the individuals who will need to be relocated. If climate change renders certain regions uninhabitable so the people must be relocated, the government will have to look after their food and shelter, then it is on to the governments to start thinking about it and prepare for it accordingly. Every Nation has different systems, legislation, public policies, the assignment of specific roles, and finance, must be established. These changes do not occur overnight. This consultation and supporting research are based on the notion that planned relocations will play a major role in future climate change adaptation plans. Climate change has an impact on the environmental and social determinants of health, such as clean air, clean water, enough food, and a safe place to live. 

Water resources and a safe place to live

Both society and ecosystems rely on water resources. To maintain our health, we need a consistent, clean supply of drinking water. Agriculture, energy production, and industry all require water. Many of these uses increase the burden on water supplies, which is likely to further increase by climate change. Climate change is predicted to increase water demand while decreasing supply in many locations. This changing balance would make it difficult for water managers to meet the needs of rising populations, sensitive ecosystems, farmers, energy producers, and manufacturers all at the same time. 

The amount of rain that falls during rains has changed, indicating that the water cycle is altering. People and animals require more water when temperatures rise to remain alive and thrive. Water is also required for many vital economic operations, such as generating electricity at power plants, raising animals, and cultivating food crops. The amount of water available for these activities could be limited, and rising sea levels and increased rainfall in some locations could render the land unfit for human habitation.

Food security

Climate change is speeding up, and this, combined with the global population, poses a danger to food security around the world. Climate change has a significant impact on agriculture. Higher temperatures eventually reduce ideal agricultural yields while fostering the spread of weeds and pests. Short-term crop failures and long-term production losses are more likely as precipitation patterns change. Despite certain increases in some crops in some parts of the world, climate change is anticipated to have a negative overall impact on agriculture, affecting global food security. People in underdeveloped countries, who are already vulnerable and food insecure, are likely to be the hardest hit.

Diseases

A warmer climate could make water-borne infections more common, as rising temperatures and environmental conditions improve bacterial survival time and growth, potentially increasing the prevalence of diarrheal disease disorders. Mosquitoes will move outside their existing habitats as the world heats, spreading the burden of diseases like malaria, dengue fever, and chikungunya.

India’s stance on conventions

In South Asia, India is the country that receives the most refugees. Bangladesh, India, Sri Lanka, Bhutan, Pakistan, the Maldives, Afghanistan and Nepal make up the “South Asian region.” Because SAARC countries do not endorse the Refugee Convention, they formed an organisation called the South Asian Association for Regional Cooperation (SAARC). Neither the 1951 Convention nor the 1967 Protocol on refugees apply. As a member, India must abide by SAARC’s rules, procedures, consistent decisions, and principles in order to receive assistance from the other member nations for the country’s successful operation. 

In fact, India has taken different steps in ratifying other international conventions compared to other SAARC countries, such as the 1984 Torture Convention, the International Convention on the Elimination of All Forms of Racial Discrimination, 1969, the Convention on the Rights of the Child, 1990, and the Convention on the Elimination of All Forms of Discrimination against Women, 1979, etc., which are intended to protect vulnerable populations like as women, children, and people who are subjected to police interrogation torture. 

Furthermore, India is bound by the principle of non-refoulment established by customary international law, which states that there may be no forcible return. Furthermore, the Convention Against Torture (CAT) says in Article 3 that, “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” India is not a signatory to the 1951 Refugee Convention or its 1967 Protocol. It does, however, continue to accept a substantial number of refugees from neighbouring countries and adheres to the UNHCR’s mandate for other nations, primarily from Afghanistan and Myanmar. 

The road ahead

States, organizations, and private parties have begun to propose ideas and plan to better cope with cross-border displacement and migration. 

Domestic level

Several countries’ disaster management legislation has now included provisions for help and protection for those affected by natural calamities in their country, notably the internally displaced people. In terms of cross-border issues, some states have provided shelter to climate refugees on their territory based on humanitarian considerations rather than obligations imposed by specific legislation, policy, or even a bilateral or regional convention.

Regional level

At the regional level, the US Immigration and Nationality Act (1952) allows for the grant of Temporary Protection Status (TPS) to foreign nationals if:

• The foreign state has suffered an environmental disaster that has resulted in a severe loss of life, but temporary, disruption of living conditions.
• The foreign state is temporarily unable to adequately handle the return of its nationals.
• The foreign state has formally requested such designation.

Conclusion

Climate change is a very serious issue, and it cannot be viewed solely as an environmental issue. The reality is that it will forever alter the world’s socio-economic landscape. According to the World Bank, by 2050, three regions (Latin America, Sub-Saharan Africa, and Southeast Asia) will develop 143 million additional climate migrants; those with the fewest options will have the least ability to adapt to climate change. Because there are no legally binding agreements requiring nations to assist climate migrants, the UNHCR and many other organizations are working on climate change discussions and providing guidance and help to various countries to develop a legislative framework on the problem. People should become more conscious of the effects of climate change and begin taking steps to minimize carbon emissions and switch to more renewable energy sources.

References

• UNHCR, IOM, NRC, Climate Change and Statelessness: An Overview, above note 148, Convention Relating to the Status of Refugees 
• Strategic framework for climate action
• https://www.americanimmigrationcouncil.org/research/temporary-protected-status-overview?__cf_chl_jschl_tk__=pmd_24b9c0bedf0a641f262c94244a0e9766882cbfba-1627104420-0-gqNtZGzNAk2jcnBszQi6 
• Legal and protection policy  
• https://www.brookings.edu/research/displacement-caused-by-the-effects-of-climate-change-who-will-be-affected-and-what-are-the-gaps-in-the-normative-framework-for-their-protection/
• https://eumigrationlawblog.eu/from-the-u-n-human-rights-committee-to-european-courts-which-protection-for-climate-induced-displaced-persons-under-european-law/
• https://rli.blogs.sas.ac.uk/2021/03/18/recognition-of-climate-refugees-what-should-be-indias-stand/
• https://www.e-ir.info/2021/05/18/bargaining-for-protection-the-case-of-climate-refugees/

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