Examining The Issue Of South Asian Climate Refugees From The Lens Of Human Rights: India’s Policy In Focus Part I

Blurb:  This blog discusses the inadequacy of the current refugee law framework in addressing the pressing issue of climate refugees. It subsequently discusses the imminent need to develop regional cooperative agreements in the South Asian region and the possibility of India entering into bilateral agreements with its neighbouring countries.

The concern of climate refugees has become a focal point in international law and human rights discourse. Climate refugees are individuals who are forcefully displaced due to environment related events such as droughts, floods, rising temperature. These extreme weather events threaten the rights to life, security, environment, food, water and health of the affected populations. Notably, they tend to exacerbate the pre-existing social inequalities, as the worst affected are those placed at the lowest rungs of the society. However, these climate refugees have consistently struggled to receive refugee status under the current refugee law framework.

The situation is all the more challenging in South Asia as it is vulnerable to serious ecological threats, especially countries like Pakistan, Nepal, Bangladesh, and Afghanistan. A study by Climate Action Network South Asia and Action Aid has given a projection that by 2050, South Asian region will witness a migration of 62 million climate refugees. India being the largest country in South Asia will naturally be seen as an eminent choice of climate refugees. This is particularly true for refugees coming from countries like Bangladesh and Nepal. Studies have shown that India will be witnessing a large influx of illegal and legal refugees from climate sensitive hotspots like Sundarbans Delta of Bangladesh and Nepal’s Terai Plains. India should also expect seasonal migration and temporary and permanent cross-border migration.

This article studies the issue of climate migrants in South Asia, advocating for the adoption of a human rights-based approach. Part I delves into the refugee law conventions and the lack of recourse available to them under this framework. Part II traces the changing trend in the discourse, which is moving towards adopting a human rights-based approach towards the recognition of climate refugees. Part III suggests frameworks that could be adopted by the South Asian countries, at the behest of India, to effectively deal with the problem of climate refugees, including non-refoulement.

The Current Legal Framework for Climate Refugees

The current framework of refugee law, the 1951 UN Convention Relating to the Status of Refugees and its 1967 Protocol Relating to the Status of Refugees (collectively “the 1951 Convention”), does not recognise climate migrants and is limited to individuals fleeing persecution based on “race, religion, nationality, membership in a particular social group, or political opinion”. It is the aspect of “fear of persecution” that is perceived as a barrier to bringing climate refugees under the ambit of the 1951 Convention. People who are displaced due to climate change do not qualify as refugees primarily because they do not have a legitimate fear of persecution on any of the grounds listed in Article 1A(2).

The UNHCR acknowledges persecution based on race, religion, nationality, political opinion, or social group membership, but not environmental persecution. Thus, to qualify as a refugee under the 1951 Convention, climate migrants need to necessarily establish a “nexus” between environmental disaster and persecution. These situations may include a scenario where a natural disaster interacts with armed conflict, aggravating the conflict situation. For instance, in a war-torn country which is also experiencing floods or droughts, using starvation as a weapon of war is exacerbating the pre-existing persecution. This is particularly true for ethnic and religious minorities and other socially vulnerable groups, who can be easy targets of persecution against the backdrop of disasters. However, climate change in itself may not be regarded as the sole reason to generate this fear of persecution. Another aspect to ponder upon is that persecution requires the presence of human agency which creates a fear for one’s life (as seen in the Teitiota case).

For these reasons, the definition under the 1951 Convention has often been criticised for not effectively catering to the contemporary problems such as the large influx of climate migrants. Thus, given the inadequacy of refugee law and international and regional conventions to effectively curb the problem of climate migrants, adoption of the human rights-based approach is necessary.

Adoption Of Human Rights Perspective in Climate Change Discourse

Climate change is closely related to humanitarian concerns as natural disasters and extreme environmental changes have the tendency to expose humans to vulnerability. Even though the dangers posed to climate refugees may not be as immediate and pressing as a refugee fleeing a war, the threat of human rights cannot be dismissed or trivialised. It is well established that human rights like the rights to life, self-determination, development, food, health, water, sanitation, housing etc., are profoundly affected by environmental changes and disasters. Climate change has been increasingly recognised as a human rights concern, and hence a human rights-based approach is necessary.

Human rights-based approach received a strong impetus in the Teitiota v. New Zealand case. In that case, Ioane Teitiota sought refugee status in New Zealand on the ground that the climatic conditions in Kiribati posed a threat to his right to life. However, the national courts of New Zealand did not grant him refugee status on the ground that he did not satisfy the definition of a refugee under the 1951 Convention. Teitiota then approached the UNHRC on the ground that New Zealand had breached its obligation of non-refoulement, as there was a clear threat to his right to life. The Committee set out three factors to assess such claims: “(a) existence of a real risk of irreparable harm, (b) the risk is personal and cannot be derived from the general conditions, except (c) in most serious cases”. Though the Committee did not rule in the favour of Teitiota, the case set a potential precedent for applying the non-refoulement principle; the UNHCR has since observed that climate change could, in extreme cases tigger non-refoulement obligations of states.

The principle of non-refoulement is not the same under international human rights law as under refugee law. Under refugee law, States are prohibited from sending back only a “refugee” whose life or freedom is threatened for reasons covered by the 1951 Convention. However, under international human rights law, non-refoulement protects all individuals who, due to their legal status, are in danger of suffering significant harm, including torture, harsh treatment, or any other grave violation of their human rights. Thus, the non-refoulement principle under international human rights framework is broader in scope. Therefore, this has been relied upon by individuals to seek protection when they do not fall under the traditional definition of a refugee.

The next part of this blog series discusses the potential strategy that India could adopt by formulating regional agreements and entering into one-on-one bilateral agreements. These measures would ensure that India keeps up with its international obligation of non-refoulement and also account for the unique realities associated with each country.

Find Part 2 of the Blog here.

Khushi Saraf is a 3rd year student at NUJS. She takes a keen interest in academic writing and editing, and her interest lies at the nexus of corporate laws, constitutional law, competition law and socio-legal areas of research.