The Question of Climate Refugees: Does India Need a Legal Framework?

Rongeet Poddar

The increasing threat of climate change and environmental disasters must be tackled in a holistic manner through active collaboration within the international community. At the domestic level, it is necessary that India fulfills its international obligations pertaining to climate change and adopts appropriate legislative instruments

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Introduction

In 2014, Ioane Teitiota, a Kiribati man approached a court in New Zealand seeking the status of a “climate change refugee”, a first in the world. The rise of sea level in Kiribati as a result of global warming had rendered living on the island nation unsuitable for his family. However, the court turned down the plea and allowed his deportation back to the Pacific Ocean archipelago, large parts of which has been projected to be underwater by 2050. Recently, in response, New Zealand has announced that it is considering the possibility of introducing an experimental humanitarian visa category specifically targeted at people displaced by rising sea levels in its neighboring areas.

Environmental disasters are significant contributors of population displacement around the world, and even within the internal territories of countries. Today, many more like Ioane Teitiota lie at risk. The objective of this paper is to highlight the nuances of climate or environment induced migration. Furthermore, the paper will also attempt to evaluate the concerns as to whether the existing international instruments suffice to tackle the impending crisis and urge the Indian government to envisage the creation of domestic institutional mechanisms to deal with the issue.


Climate induced migration in India

There has been significant cross border migration into India from its neighboring countries due to the detrimental impacts of climate change such as Salt water intrusion into the Ganges delta and the threat of cyclones in Bangladesh. A number of policy challenges thus lie in store for the Indian government to deal with such an impending crisis, especially at a time when anti-immigrant sentiment is brewing in many parts of the Northeast.  The recent floods in Kerala induced by Climate change also resulted in large scale internal displacement.

The question naturally arises whether India has a legal framework to deal with an impending crisis of refugee inflow or even large scale internal displacement within the country as a result of climate change. India does not have any national legislation to specifically cater to this issue. This is a lacuna in India’s legal system that needs redressal. India has in fact already been criticized for taking a rather piecemeal approach to deal with refugees.


Finding the right data to evaluate the problem

The existing data for the number of environment refugees or those internally displaced due to environmental factors remains nebulous.  The first exercise for the government should be to frame a precise definition to identify these refugees and understand the nuanced causes of  their migration. Only then can an approach for rehabilitation be formulated effectively.

It is reported that close to 1.5 million people are classified as internally displaced in India every year with climate change contributing to it. Furthermore, globally, 19.3 million people are reportedly said to be displaced due to climate change, with this subcontinent being identified as one of the most vulnerable regions in this regard. According to a recent World Bank report titled ‘Groundswell-Preparing for Internal Climate Migration’, 143 million people are at displacement risk from climate change in the present day. ‘Climate migrants’ are likely to be concentrated in developing countries, in Sub-Saharan Africa, South Asia and Latin America.

Accurate data to reflect the exact number of ‘climate refugees’ is difficult to procure given the lack of recognition by legal regimes of the existence of this specific type of refugees. The lack of substantive figures or causes can be attributed to a lack of clarity even among scholars and policy makers in identifying refugees of climate change or environmental disaster. Can a tribal community in a riverside settlement displaced by the environmental impact of a newly built dam` be categorized as coming under the same plane as a group of people in a mangrove swamp who were forced to move out due to the rising level of a tidal river? In this hypothetical example, the former scenario is clearly induced by human states and may even involve the connivance of the state in triggering the displacement. The latter instance on the other hand may not involve human agency as the immediate cause of homelessness. The answers therefore are not easy to find.


The current international legal regime

International refugee law continues to be deficient in identifying ‘climate refugees’. The 1951 Refugee Convention, to which India is not a party to, and the subsequent 1967 Protocol restrict the definition of persecution to five grounds: race, religion, nationality, membership of a particular social group and political opinion. Environmental degradation or climate change was not considered compelling enough a reason at that time to come within the ambit of ‘persecution’ strictly. The conspicuous absence in the Convention is not conducive as it prevents the development of institutional mechanisms by states to deal with the problem.

Yet, given the immediate demand of the Convention when it was formulated, was to respond to the horrors of World War II, it can perhaps be forgiven for the same. The concept of climate refugees as such had not yet emerged as a pressing concern for lawmakers and alike. The world today however is vastly different. In a global political climate already charged as a result of refugee inflows from several parts of the world, climate induced movement of populations present an intriguing scenario. However, subsequent international law documents have also not come up with anything to plug this glaring loophole.  The lack of consensus on an acceptable definition of ‘environment refugees’ seems to have caused some friction in the process of laying out the international legal framework.

Some scholars have highlighted that displacement as a result of climate change or environmental disaster is more likely to result in migration within the territorial borders of a country rather than cross border migration. Therefore, policies of national governments in dealing with such internal displacement assume critical importance. Bangladesh has often been highlighted as a case in point for showcasing the effects of such internal displacement. Climate induced migration in the country has resulted in unplanned urbanization and the growth of slums in its capital city Dhaka. In 2005 for example, reportedly, 5,00,000 inhabitants of the Bhola island in Bangaldesh lost their homes and were forced to relocate to slums in Dhaka when their island was submerged by flooding. The 1998 UN Guiding Principles on Internal Displacement however are  broad enough to cover people who flee their homes and migrate within their country. According to scholars, the strength of the instrument lies in the fact that no preliminary determination is necessary to enquire as to whether migration after a specific disaster is linked to climate change.


The path breaking UN Global Compact for Safe, Orderly and Regular Migration

Recently, the UN Global Compact for Safe, Orderly and Regular Migration gave formal recognition to climate induced migration. This is the first time that a global albeit non-binding understanding has been reached in this regard. It is noteworthy that the international community has finally decided to come together to formulate a strategy to deal with the adverse effects of climate induced migration. The European Parliament has also recognized the Global Compact as the first step towards building a robust international legal regime to address migration due to climate change. The causal link between change and involuntary displacement is often hard to establish given the irreversible process is slow-onset and takes place over an extended period of time. Therefore, international efforts must be channelized accordingly.


Towards a working definition of ‘environmental refugee’

As early as 1985, Essam El-Hinnawi of the UN Environment Programme drafted a comprehensive definition of ‘environmental refugees’ as ‘those people who have been forced out of their traditional habitat, temporarily or permanently because of marked environment disruption (natural and/or triggered by people) that jeopardized their existence and/or seriously affected the quality of their life.’[1] However, since this pronouncement, the international legal regime has offered little to provide a substantial addition to this definition. The use of the term ‘refugee’ in relation to environmental disorder or climate change is deemed to be problematic because of the static understanding of a refugee as elucidated in the 1951 Refugee Convention.

The UN Global Compact of 2018 however offers hope that the international community will look to addressing the question of definition with renewed vigour. An acceptable definition at the international level is after all the starting point of establishing a regime of protection and rehabilitation following which efforts can be channelized at the domestic level depending on regional specificity.  The UN 2030 Agenda on Sustainable Development also recognizes the need to take suitable measures to ‘strengthen resilience and adaptive capacity’ in response to climate-related hazards and natural disasters in all countries. The UNHCR must now undertake a fruitful exercise in formulating a concrete refugee definition and policy in furtherance of this goal. However, global law makers must also be vigilant about the perils of adopting a one-size-fits-all approach which could downplay the specific needs of displaced communities.


India’s challenge

The gloomy picture painted by the World Bank report, discussed previously, however only presents a scenario that could arise if no action is taken on the part of the states that are at risk. India urgently requires climate policies to reverse the prediction. The necessity to prepare robust climate migration strategies assumes even greater importance in India because of a number of factors.

The vast territorial extent of the country and the geographical diversity necessitates region specific action plans. For example, the policy response required in case of temporary distress migration in a drought affected area of Rajasthan will be different from that of permanent cross border migration from across the border in Bangladesh as a consequence of loss of homes due to rising sea level. Climate change has the potential to aggravate the prevailing agrarian distress and further accentuate a population transfer to urban areas. Furthermore, climate change or environmental disasters also affects different populations in different ways. Specific communities often bear the brunt of such crises. In the aftermath of the devastating floods in Bihar for example, relief camps built for the displaced were usurped and controlled by dominant upper castes. Similarly, in case of extreme air pollution in an urban centre such as New Delhi during winter, the poor cannot afford to temporarily relocate like some of the elites. This is a cruel manifestation of how some communities who lack economic resources or social capital are rendered more vulnerable than others. This suggests that a targeted policy response is often mandated on behalf of the state to come the aid of the have-nots.

Given the fact that the Indian government does not have a definite refugee policy at the moment and institutional responses are usually ad hoc measures including occasional judicial interventions, it would be futile to expect a climate refugee policy overnight for cross border migration. The Asylum Bill of 2015, the National Asylum Bill, 2015 and the Protection of Refugees and Asylum Seekers Bill, 2015 are some of the notable attempts that have been made in India to enact a suitable refugee law.[2] However, the climate refugee question has not invited the attention in these instruments. The 2018 UN Global Compact should provide a timely reminder to incorporate this concern, should India pursue a plan of formulating a comprehensive refugee law. Caution must also be duly exercised as a generalized refugee law may not have the requisite nuances to cater to the plight of refugees effectively. The protection of vulnerable communities who lack must assume special importance in this endeavor as they are the ones who bear the brunt of climate change or any environmental disaster.

Furthermore, much like what New Zealand in the Pacific, India will also be a significant ‘destination country’ to climate induced migration in the South Asian region in the years to come. However, presently, it does not have any mechanism for providing short-term visas to those who are forced to migrate as a result of environmental factors. Scholars have argued that modification of existing migration policies of national governments can be a feasible immediate measure that can be undertaken while a country builds on its capacity to develop a new migration regime taking into account the plight of environment refugees.

While a refugee law may cater to the demands of cross border migration of environment refugees, the plight of those internally displaced as a consequence of climate change must also not be overlooked. The Disaster Management Act, enacted in 2005, for example, envisages institutional mechanisms under its fold to deal with an internal environmental disaster. While, it is acknowledged that such generalized legislations offer flexibility to immediately counter an environmental disaster, it would be an overestimation to expect it to cater effectively to the plethora of crises that climate change may threaten to unleash in the long run within the country. There is presently no legislative instrument that spells out the adoption of mandatory rehabilitation and relocation measures in response to environment induced internal displacement. The onus lies on the government to also formulate a policy paper that sets out targets to potentially minimize if not reverse such internal migration by exploring the possibility of rebuilding ecologically volatile areas.


Conclusion

The question of immediate disaster management or temporary rehabilitation should not be the sole contention in response to tackling climate induced migration within states and across international borders. The increasing threats of climate change and  environmental disasters must be tackled in a holistic manner through the active collaboration within in the international community. At the domestic level, it is necessary that India diligently fulfills its international obligations pertaining to climate change and adopts appropriate legislative instruments. The countries which are traditionally the primary contributors of climate change must be held accountable in this exercise through the application of collective international pressure by countries such as India who are today the destination countries for climate refugees. Internally, India must involve the governments at the state level to offer a dynamic response to the involuntary displacement that is attributed to environmental factors. This is because the nature of environment related migration is bound to vary across regions and accordingly, rehabilitation plans and other policy responses must be modified accordingly as per specific needs. The collaborative efforts of non-governmental organizations will also be crucial in this endeavour. Therefore, on the whole, addressing the issue of climate induced migration will involve a two pronged approach: an immediate mechanism for rehabilitation and a commitment to reversing or minimizing the deleterious effects that contribute to this migration. A policy paper on climate migration must also involve identifying the specific vulnerable communities so that targeted responses can be coordinated for that purpose. This is where local self governance institutions will have a very important role to play in order to democratize the exercise of policy making by ensuring that the voices of these communities are heard.


[1] Climate Change and Displacement: Multidisciplinary Perspectives, 158 (Jane McAdam Ed., 2010)

[2] S.P. Sarker, Refugee Law in India: The Road from Ambiguity to Protection, 181 (2017)


The author is a Final Year BA.LLB Student at the West Bengal National University of Juridical Sciences, Kolkata.


Image Credits – TOI

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