– Dipakkshi Chachan
An increasing number of people are being forced to leave their homes due to the adverse effect of the climate. Environment displacements can be caused by various ways such as drought, desertification affecting livelihood, rising sea levels or intensified natural disasters. This study styles the issue of environment migration and examines as to what extent the current international law provides protection to the environmentally induced migrants. The aim of the article is to draw the attention to the increasing environmental displacements, the gaps in the international law and ways to address this problem. It reviews the refugee law, environmental law, human rights law and the law on stateless persons, and concludes that none of them provide any protection to the people who have been displaced as a result of climate change. The article shows the relation between climate change and cross border human migration.
CLIMATE, INTERNATIONAL LAW, DISPLACEMENT, REFUGEE, ENVIRONMENT.
A large number of people are being forced to flee from their homes due to weather -related disasters, environment degradation and changing climatic conditions. Growing water scarcity, decreased agricultural output, desertification, floods or tropical cyclones have caused people to migrate in order to support their livelihood.
Climate crisis has grown during the past decades, and this has led to an awareness and discussion among the scholars as well as the international organizations concerning the need to protect environment migrants. For example, the IPCC stated that “The gravest effects of climate change may be those on human migration as millions are uprooted by shoreline erosion, coastal flooding and agricultural disruption.” [i] Experts in the environmental and human rights communities have expressed their concern towards environment migrants. There is a general agreement on the fact that environment induced migration will supersede all known refugee crises in terms of the number of people affected. Thus, environmental change will affect the lives of the people who will be forced to migrate in order to seek protection in other areas.
In the year 2008, the deputy High Commissioners for Human Rights provided that : “By 2050, hundreds of millions of more people may become permanently displaced due to rising sea levels, floods, droughts, famine and hurricanes. The melting or collapse of ice sheets alone threatens the homes of 1 in every 20 people. Increased desertification and the alteration of ecosystems, by endangering community’s livelihoods are also likely to trigger large population displacements.”[ii] Despite, increasing awareness concerning the issue the International law is silent; neither the UN framework Convention on Climate Change nor the Kyoto Protocol contains any provision regarding specific assistance or protection for those who will be affected directly by the effects of climate change.
INTERNATIONAL REFUGEE LAW
The refugees from prosecution and war are protected by international law, there is ambiguity as to what extent does the international law protects people being internationally displaced as a result of environmental factors. There is no universal definition for this particular group of people and an agreement as to who should be protected on grounds of being environmentally displaced.[iii]
Adverse Climate change such as desertification, rising sea levels or extreme weather events though harmful do not meet with the requirements as stated in the 1951 Refugee Convention.
THE 1951 REFUGEE CONVENTION:
Under International Law, refugee is a person who owing to well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social or political opinion is outside the country of his nationality and is unable or unwilling to avail himself of the protection of that country or who not having a nationality and being outside of the country of his former habitual residence as a result of such events is unable or unwilling to return to it.[iv]
Thus, only those migrant will get protection who will establish the above mentioned grounds. The terms climate refugee or environmental refugee accordingly do not have any legal basis under the contemporary international law. Though adverse climate change are harmful but they do not meet the threshold of persecution as required under 1951 Refugee Convention. Even if the harm is caused by climate change, which would cause breach of socio-economic rights as the violator of socio economic right is most often the government. An environmental migrant is not escaping the government.
THE 1969 OAU REFUGEE CONVENTION:
Refugee means a person who is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality because of events seriously disturbing public order in either part or the whole of his country of origin or nationality.[v] It means that cross broader movement which take place due to natural disaster can be taken within the meaning of refugee depending upon the circumstances.
Environmental factors causing the migration might be considered as events seriously disturbing public order, which means that the convention requires evidence of an actual threat and the protection is provided when the person is compelled to leave the country of origin because of it. Therefore it is an instrument providing limited pre-emptive protection to environmental migrants.
Despite the clear language of the convention, there are no indication that the environmental migrants are protected under the convention.
INTERNATIONAL ENVIRONMETAL LAW:
The UNFCCC mainly deals on climate prevention and adaptation. The convention focuses on interstate relationship rather than individual rights and protection and there is no provision for the protection of the people displaced due to the environmental factors.[vi]
The Convention states that measures must be taken for the ones affected by the climate change but the convention is silent on rights and needs of the individual who are displaced due to the change.
In 2011 Cancun Conference recognised environmentally induced migrants as an important issue and even agreed to undertake “measures to enhance understanding, coordination and cooperation with regard to environmentally induced displacement, migration and planned relocation at national, regional and international level.” [vii]
INTERNATIONAL LAW ON STATELESS PEOPLE:
The Convention relating to the statutes of stateless persons cannot be considered suitable to protect migrants. The convention only prohibits expulsion of stateless persons lawfully staying on the territory, except on national security or public order.[viii] The law on stateless persons does not offer any right of protection to persons who have been environmentally displaced, even if they would come within the meaning stateless. It only provides that the person will be lawfully present in a receiving state if they do have no state to return. Secondly, for the convention to operate, the Government must have withdrawn or denied the citizenship of the person. The person is rendered de facto stateless and is not covered by the statute, because the state in which the person was considered a national has disappeared.
INTERNATIONAL HUMAN RIGHTS LAW:
Climate change has an impact upon the enjoyment on human rights. There are handful standards of human rights principles for covering the people induced to migrate. They do not meet the definition of torture which means the intentional infliction of severe pain or suffering by a public official with the purpose of punishment or obtaining confession.[ix] The environmental induced migrants do not meet any of the prerequisites.
When socio-economic human rights are violated due to climate change, it is difficult to hold anyone responsible for these violations. There is a need for a persecutor, and in case of the environment it would be the industrialized countries that mostly cause global warming. Then the receiving state itself would be persecutors. Therefore, international human right does not have much to provide relief in the case of migration due to environmental factors.
It has been found that none of the existing treaties deal with the protection of such migrations. These migrants are not protected under international refugee as they are not exposed to persecution. Further, the international environment law focuses more on the relationship and rights of the state than the individuals. The law on the stateless persons does extend the situation of de facto statelessness. The human rights law cannot be enough to cover the migrants of climate change as there are no explicit human rights protection for this particular group and the principle of non-refoulement does not aid a person displaced by environmental factors.
There has to be some kind of permanent protection status in addition to temporary protection. It is the need of the hour that instruments are created at various levels for addressing the needs of people migrating as a result of adverse effect of the climate. The States must make domestic laws in order to respond to the environmentally induced migrants. There has to be a soft law or any substitute during the negotiation of new convention. A platform to cover the gaps in the contemporary international law and legal proposal for covering the environment induced migration. Finally, it is concluded that due to the complexity of the issue, there has to be combined solutions for filling the lacuna.
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[i] Myers and kent, Environment Exodus : An emergent crisis in the global Arena , p 134.
[ii] OHCHR, Climate Change, Migration and Human Rights: Address by Kyung-wha Knag Deputy High Commissioners for Human Rights Office of the United Nations Commissioner for Human Rights.
[iii] Warner, Global Environment Change and Migration : Government Challenges, p 403 .
[iv] The 1951 Convention relating to the statutes of Refugees as modified by 1967 Protocol Article 1A(2) .
[v] The 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa, Art 1(2).
[vi] Docherty and Giannini , Confronting a rising tide: A proposal for a convention on Climate change Refugees,
p 358 .
[vii] UNFCCC, The Cancun Agreement : In Report of the Conference of parties on its sixteenth session , para 14(f).
[viii] The 1954 Convention relating to the Statutes of Stateless Persons, Art 31.
[ix] The convention against Torture and other Cruel inhumane or degrading treatment or punishment , Art 1 .