In this blogpost, Abhiraj Thakur, Student, NALSAR University of Law, Hyderabad, writes about environmental migration: exploring the plight of climate change refugees
Climate change in the modern era has been accelerated manifold by industrialisation primarily in the North. Greenhouse gas emissions, dumping of industrial waste in water bodies, and other human activity has led to an increase in global temperatures, leading to disastrous consequences in the international sphere. Some effects of global warming include a rise in sea levels, glacier retreat, and change in timing of seasonal events, changes in agricultural productivity, precipitation patterns, extreme weather changes, acidification in seas, etc. this effects directly impact livelihood of people in affected areas, decrease in crop yield and subsequently leading to a food security crisis, negatively impacts health, leads to a shortage of water resources in some areas and an abundance in others, the geo-bio diversity in the regions, an increased risk of extreme weather conditions like floods, storms, droughts, etc.[1] The regions most affected by climate change will be Africa, Asian mega-deltas and small island states in the Pacific.
Cross-border movements induced by climate change have given rise to a pertinent issue in international law on whether to treat such persons as migrants or as refugees, given that there are widespread legal implications attached to each concept.
The idea of an “ecological refugee” was first proposed in 1948, concretising subsequently in a UNEP report in 1985 by El-Hinnawi.[2] The 1980s and 1990s saw the conception of climate change as a scientific and environmental issue. The 1990 Intergovernmental Panel on Climate Change (IPCC) succeeded in identifying the abeyant consequences of climate change on human migration. There numerous challenges faced by the affected populace, compelling them to look for other opportunities to support themselves and their families, this ultimately results in migration to a different country in the hope of procuring better resources and exploring new avenues for growth. Though there is a dispute over the magnitude of the phenomenon, it is widely agreed that climate change has an impact on the movement of persons among countries and regions within a country.
Major problems
Climate change is defined in the UNFCCC as “a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to other natural climate variability that has been observed over comparable time periods.”[3] Though past experiences such as huge influx of Africans trying to get into Europe and many other examples show there exists a relationship between climate change, environmental events and the displacement/movement of people, it is difficult to ascertain exclusive causality among the factors using current scientific procedures. Migration is a multi-causal event.
Claims under different laws
- International refugee law
Climate change displacement occurs over a period of time, as opposed to sudden displacement like that faced by traditional refugees. The displaced people, as discussed above, do not fit into the definition of “refugee”. Definitional obstacles come in way of claiming protection under refugee law, as
Environmental changes cannot readily be characterised as persecution. It is pertinent to explore the concept of non-refoulement, i.e. the principle that no one should be sent back to the persecution or other forms of serious harm,[4] rather than attempting at characterising climate change refugees within the definition of a refugee under the 1951 refugee convention which might lead to a narrow interpretation and consequently refuses wider protection and the evolution of categories of principles. This gives only a temporary refuge, meaning that the host country cannot readily persecute refugees and expel them. However in cases where indigenous people are given a lesser priority than other residents of the state in cases of climate change induced displacement, which can constitute persecution on the grounds of race. Another problem is of IDPs, A large part of those displaced might be Internally Displaced People (IDPs), which is governed by soft law principles, not binding treaties. This concept cannot be governed by international law. UNHCR deals only with those IDPs who are forced to move due to conflict. There, however, is a tangible danger of conflict arising because of the scarcity of food, which can be traced back to climate change.
- International environment law
The global climate is a part of a “common pool resource”[5] which is of great importance to humanity. Customary international law mandates state to control pollution and conserve biodiversity in their respective states. Refrainment against causing transboundary environmental harm is an established principle. The Kyoto Protocol has succeeded to some extent, in helping to identify causation of emissions. It accepted that the right to environment is essential to fulfil the right to life of any individual.
The limitations faced by application of environmental law include the prioritisation of states over individuals as claimants, as it lies primarily between states and individuals enjoy lesser legal capacity. The problem of quantifying the amount of carbon emissions and identifying causation remains a pertinent issue here as well. Compounding to this, the responsibilities of corporations which have a major role to play in contributing to toxic wastes in the environment, cannot be adjudged affectively. The states remain the primary unit of a legal system.
- International human rights law
Human rights law sets out a minimum standard of treatment to be meted out by states towards individuals within its territory. It provides a way of assessing which rights are being compromised by climate change and provides a mechanism of devolving primary responsibility on national authorities. In extreme cases where there is a loss of the physical state, resulting in a situation of statelessness, the right to self-determination of people is threatened. However, international law doesn’t anticipate these eventualities and those displaced are not protected by the international statelessness regime. The legal definition states that statelessness occurs when there is a denial of nationality through an operation of the law of a particular state, not by the disappearance of the state altogether.[6] This narrow interpretation negates protection by the persons of Tuvalu and Kiribati islands, which have a legitimate concern of their territory being submerged in foreseeable future.
In the case of relocation, human rights law also mandates a certain standard of treatment to be meted out to those displaced. The right to life as envisaged by the International Convention on Economic, Social and Cultural Rights provides for the right to an adequate standard of living, adequate food, clothing, housing, and the continuous improvement of living conditions, and the right not to be deprived of livelihood.[7] The right to enjoyment of physical and mental health may be affected due to change in climatic conditions.[8] The rights of ethnic, religious, linguistic and indigenous minorities will also be threatened due to climate change. However, when the question of whether states producing carbon emissions can be held liable for those they affect in other states, international human rights law falls short. The responsibility a state owes extends only to those who are present in their territory.
If human rights are at a risk, complementary protection may be provided on a legal basis by another state.[9] It entails protection granted by states outside the purview of the 1951 Refugee Convention and is based on humanitarian principles. However, only the principle of nonrefoulement is applicable to climate change refugees. This too, cannot be the legal basis for a protection claim according to current jurisprudence, as it doesn’t meet the international definition of torture.
- International humanitarian law
The International humanitarian law comes in situations of conflict, and in the context of climate change, it can be applied in cases where climatic conditions lead to a situation of conflict. This is not a far-fetched situation, as direct consequences of climate change attack the very basic needs of human life, creating scarcity. When faced with a scarcity of agricultural produce, water resources, livelihood, etc. it creates a situation of conflict over possession of the same.[10] The causes of conflict may be manifold, and cannot be attributed to climate change alone. It provides for a temporary relocation of displaced people, providing for their return after the conflict subsides. It prohibits unlawful displacement of civilians but does not provide for remedies like restitution or compensation for losses suffered due to displacement, though the jurisprudence in these areas is still developing. The principle of nonrefoulement prevents states from expelling refugees displaced in situations of conflict, which may be caused by climate change. But we see Humanitarian law gives minimal regard to the causes of displacement. It emphasises on the principle of neutrality and applies equally to all citizens affected by conflict. It provides only for basic protections for displaced individuals, failing to provide for a long-term relocation or solution.
Possible solutions
When protection claims are sought individually under the various provisions discussed above, the result seems to fall short of a concrete solution. The lack of a dedicated institution to address the threat of climate change and its consequences does little to contribute to the institutional stagnancy faced by the affected people. A human security approach has been proposed by Professor Jane McAdam. Human security approaches this concept in terms of human needs. As articulated by the UN Development Programme, human security is defined in terms of ‘freedom from want’, ‘freedom from want’, ‘safety from chronic threats like hunger, disease and repression’ and ‘protection from sudden and hurtful disruptions in the patterns of daily life’.[11]
Some suggestions made in the Oslo Nansen Conference[12] include:
- Migration needs to be looked at as an adaptive and survival strategy.
- Interdisciplinary partnerships between scientists and disaster risk managers to address the problems of causation and to further research in this area.
- Climate information must be paramount in decision-making forums so as to ensure acknowledgement of the same and to act as a guiding and channelizing factor in decision making.
Early warning and preparedness systems need to be institutionalised and harnessed to prevent migration.
[1] Climate Change (IPCC) (2007)
[2] El-Hinnawi E., Environmental Refugees (United Nations Environment Programme) (1985)
[3] Article 1(2) UNFCCC
[4] Jean Allain, The jus cogens Nature of non‐refoulement, 13 International Journal of Refugee Law 533–558 (2001)
[5] xi The drama of the commons (National Academy Press) (2002)
[6] Article 1(1), Convention Relating to the Status of Stateless Persons
[7] Article 12, ICESCR
[8] CLIMATE CHANGE (IPCC) (2007) at 7
[9] Jane McAdam, Complementary Protection in International Refugee Law (Oxford Monographs in International Law) (2007)
[10] D. Zhang and others, Global Climate Change, War, and Population Decline in Recent Human History, Proceedings of the National Academy of Sciences of the United States of America, vol. 104, no. 49 (4 December 2007), International Alert, A Climate of Conflict: The Links between Climate Change, Peace and War, (London, November 2007)
[11] UNDP, Human Development Report, 1994, 23
[12] Nansen Conference on Climate Change and Displacement in the 21st century (Oslo, 6-7 June 2011): Conference Report UNHCR, http://www.unhcr.org/4ea969729.html (last visited Apr 10, 2015)
