Rethinking refugee policy

In light of global warming

In October 2018, I remember standing among a tense pool of delegates of the Permanent Representation of the Kingdom of Netherlands and international experts at Palais des Nations in Geneva. The news of the year was just out — the Intergovernmental Panel on Climate Change (IPCC) had just released a ‘Special Report’ on global warming, describing the dangerous consequences of a 1.5-degree Celsius rise in average global temperature. Against this backdrop, the discussion moved towards understanding the humanitarian implications of climate change and of requiring a global response to the striking numbers of approximately 140 million climate refugees worldwide.

The framing of the climate refugee phenomenon as ‘nuanced’ and ‘relatively new’ appears to put policymakers in a puddle. This is because the discussions conveniently revolve around the international refugee law rhetoric. The paradox of State sovereignty and the protection of refugees as addressed by the Convention Relating to the Status of Refugees, 1951 (hereafter, the Convention) is essentially State-centric.

We understand refugees as an obstruction to State sovereignty and security, as per the Convention’s traditionalist stance of interpreting the letter of the law as it is. The Convention’s exhaustive grounds of race, religion, nationality, membership in a particular social group and political opinion leave behind no room for the legal recognition of climate refugees. Additionally, the fact that climate refugees do not appear to face a ‘fear of persecution’ from the State as mandated by the Convention enables their exclusion from it. The discussion progresses little beyond this reasoning and the case for legalising climate refugees is a lost cause.

Although the principle of complementary protection aims to extend the fundamental refugee law principle of not forcing refugees to return to a country where they are likely to face persecution (‘non-refoulement’) to grounds beyond the Convention’s, its application is largely left to the discretion of states’ interpretation.

The crux of the problem has less to do with advocating for the Convention’s recognition of climate refugees and more with how the current rhetoric shapes the approach of domestic jurisdictions in formulating their refugee laws and policies. For instance, the Pacific Island nations have been in the spotlight for extreme weather changes and rising sea levels that pose an imminent threat to the livelihoods of inhabitants.

Food insecurity, unemployment and disruption of daily lives have pushed islanders from Kiribati and Tuvalu to seek refuge in New Zealand and Australia. One such case appeared before the New Zealand Immigration and Protection Tribunal. The Tribunal’s judgement presents the perils of the current approach towards climate refugees.

In refusing the application, the Tribunal held: while the environmental conditions in Kiribati can involve significant human rights issues, the claimant must still establish that they meet the legal criteria set out in the Refugee Convention”, “…and have sufficient nexus to a Convention ground”. It is pertinent to observe that the rights that are to be protected in this case are similar to the rights of other groups of refugees. But, for reasons of the current legal inadequacies in refugee law, climate refugees are seen as voluntary economic migrants that are not fleeing persecution.

Closer home, the phenomenon can be traced to several gradual environmental changes and natural disasters. Frequent floods, droughts, earthquakes, rising sea levels accelerate the need for countries to formulate comprehensive schemes of rehabilitation and resilience to the human impacts of climate change.

In 2017, weather-related disasters affected around 40 million people in Bangladesh, Nepal and India alone. One such crisis is the issue of climate adaptation in the Hindu Kush Himalayan (HKH) region that requires concerted efforts to rehabilitate several settlements whose livelihoods are currently being displaced. HKH spans across Pakistan, Afghanistan, India, Nepal, China, Bhutan, Bangladesh and Myanmar and comprises one of the world’s most vulnerable ecosystems. HKH has been a reservoir of natural resources and a significant source of livelihood for millions. In recent years, HKH is experiencing global warming at alarming levels and this has been highlighted by the IPCC. Food insecurity as an outcome of global warming is the most emergent reason for displacement of mountain settlements.

While most displacement in the region has historically been within countries and in the quest for rebuilding homes in similarly situated environments, we can well anticipate environmental stresses forcing people to move out of their countries. Indeed, there is an increasing trend of South-South migration in the region.

India has a history of admitting refugees from these countries, but without a discernible legal approach. India has not ratified the Convention and its 1967 Protocol, but in the past has adopted the principle of non-refoulement in its approach of admitting refugees. However, its policies toward refugee groups have often been in the nature of isolated and reactionary responses. In the realm of climate refugees, there is no precedence of acknowledgement by India so far. None of the relevant laws, such as as the Foreigners Act, 1946, Passports Act, 1967, the Illegal Migrants (Determination by Tribunal) Act, 1983, or the proposed Citizenship Amendment Bill reflect a complete picture on where we stand on taking in refugees.

Nonetheless, the global community’s expansion of the dialogue to environmental grounds in the Global Compact for Migration, 2018, and the Global Compact on Refugees, 2018, is a sign of optimism, specifically for India as it has adopted both these instruments. While both the compacts are soft-law instruments, they still provide guidance on a transnational approach that domestic legal orders can adopt in the furtherance of international goals. In light of this development, it is exciting to note the future of India’s legal policy on refugees.

Adaptation to climate change requires a bottom-up legal response, originating from the domestic level. It is imperative to view environmental issues from the legal prism of other disciplines, in this case through refugee law.

(The writer is an environmental and energy lawyer/activist currently pursuing a PhD in International Law at the Graduate Institute, Geneva)