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

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 first part of this blog series identified the lacunae in the existing legal framework of refugee law in dealing with climate refugees. Considering the inadequacy of the refugee law in alleviating the plight of such refugees, it discussed the human rights-based approach to view the problem.

India’s Multifaceted Response to the Refugees

The question of non-refoulement is tricky from India’s perspective as India has tried to shrug off its responsibility in complying with non-refoulement obligations on the ground that it is not a signatory to the 1951 Convention. However, it is important to note that India has signed instruments like CAT (Article 3), ICPPED (Article 16), ICCPR (Article 7), and ICERD (Article 5), all of which, directly or indirectly, provide for non-refoulement. Additionally, non-refoulement, having been recognised as customary international law, binds India regardless of its ratification of the Refugee Convention.  

Interestingly, India does not have any law on refugees or illegal immigrants, and does not make a distinction between asylum seekers, refugees or stateless individuals. India admits refugees on an ad-hoc basis, for instance, refugees from Afghanistan and Myanmar enter India by directly approaching the UNHCR office in India, and on the other hand, India administratively gives refugees status to refugees from Tibet and Sri Lanka.

A. Formulation of Regional Refugee Instrument

Interestingly, the South Asian countries are united by their lack of ratification of the 1951 Convention. Though basic human rights protection and non-refoulment are the bare minimum that is expected from countries, unfortunately, they have not been adhered to, and countries like Thailand have engaged in pushback policies redirecting refugees to other countries. In that light, a regional mechanism is urgently needed to ensure basic human rights. India, being one of the most influential countries in the South Asian region, shares a larger burden of ensuring that the existing legal vacuum is taken care of.

The formulation of a regional refugee instrument could be a good starting point considering the complexities and commonalities of problems faced by this region. Such regional instruments already exist in Africa (OAU Convention) and Latin America (Cartagena Declaration), catering to the specific needs of those regions. Along a similar line, the UNHCR constituted a group called the Eminent Persons Group (“EPG”) to develop a regional instrument for addressing the needs of refugees in general, stateless persons and Internally Displaced Persons. The model law developed by the EPG could provide a good framework for formulating a South Asian regional refugee instrument.

i. Definition of a Refugee

The OAU Convention and the Arab Convention on Refugees have given a broad definition of refugees and have implicitly held the potential to give recognition to climate refugees. Article 1(2) of the OAU Convention recognises refugees as persons fleeing persecution on the grounds of “external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of [their] country of origin or nationality”. The term “events seriously disturbing public order” can be given a broad definition to bring climate refugees under its ambit. The preamble of the Convention also recognises the need to adopt a “humanitarian approach” to cater to the problems faced by refugees.

The Arab Convention on Refugees has explicitly recognised “natural disasters” as a qualification, thus bringing climate refugees under its scope. On a similar note, a regional instrument catering to the South Asian countries should consider explicitly defining climate refugees or implicitly bringing them under the ambit of the refugee definition.

ii. Explicit recognition of the non-Refoulement principle

Non-refoulement is a basic international standard of treatment that must be met and necessarily acknowledged by the regional South Asian refugee instrument. The EPG’s model law, in Article 6, also explicitly reaffirmed the non-refoulement principle. Adoption of non-refoulement is important because India, in particular, has shown a lackadaisical attitude towards accepting the non-refoulement principle as its international obligation. As recently as in 2021, the Supreme Court refused the entry of Rohingya refugees and deported them back. India has consistently treated refugees as foreigners under the Foreigners Act of 1946, completely sidelining the fact that these refugees are forced to flee their homes abruptly due to threats to their lives and freedom, often without the opportunity to obtain proper travel documents from their home countries. Bangladesh has also, in the past, adopted a pushback policy towards Rohingya refugees. These instances point towards the importance of explicit recognition of the principle of non-refoulement by the host state so as to protect human rights.

Hence, a regional refugee instrument is the need of the hour, and by successfully aligning the customary international law and global norms with the regional challenges, South Asian nations, would be better suited to deal with the human rights protection of climate refugees. Regional organisations like BIMSTEC could offer a lucrative platform to discuss and exchange ideas on this issue.

While the universality of non-refoulement serves as a baseline obligation for India, bilateral agreements with other countries could potentially implement this universal obligation by factoring in the unique challenges and socio-political realities associated with these countries.

B. Flexibility in Handling the Refugees: The need for Bilateral Agreements

Bilateral agreements can prove to be very effective in adequately dealing with the problem of climate refugees as they can provide individualised solutions to the problems faced by the countries, catering to their specific needs. There are already many bilateral agreements in place between Bangladesh and Myanmar for Rohingya refugees and Afghanistan and Pakistan for Afghan refugees. India could similarly devise such refugee agreements with individual countries, adopting a pluralist approach. For instance, when a farming community is forced to leave their country due to erratic rainfalls or droughts, they may gain from policies supporting seasonal labour migration and income diversification. In contrast, a community in a delta region facing the threat of rising sea levels could benefit from migration and resettlement programs. Instead of a one-size-fits-all approach, which disregards the unique circumstances of climate refugees, an individualised approach should be adopted.

Similar bilateral agreements are being discussed by Australia and New Zealand as both countries are witnessing an increasing number of asylum seekers from Pacific Island countries that risk submergence due to rising sea levels. In fact, Australia and Tuvalu even signed one such agreement, pursuant to which Australia will help citizens of Tuvalu to settle there permanently. Inspiration can also be taken from Italy which issues renewable short-term residency permits for migrants whose country is in a situation of contingent and exceptional calamity that would not allow them to return to their country safely.

Moreover, there can be both a slow onset or a sudden disaster that may displace people, and both situations demand distinct responses. In Bangladesh, for instance, 75% of the country is below sea level, and predictions suggest that another 17% of the country will submerge permanently. On the other hand, Afghanistan has more short-term climate crisis driving displacement of the people, such as the earthquake in 2022 and the floods in 2024. Therefore, while the problems concerning Bangladesh require a long-term solution with the possibility of permanent displacement, the same is not true for Afghanistan. Similarly, in certain situations, refugees come to a country driven by recurring floods or droughts that have severely affected the labour markets and employment opportunities. Climate crisis in Pakistan, on the other hand, suggests that it is often temporary, and refugees return to their homes. Migration patterns from Nepal suggest that migrants engage in seasonal migration, where they take up low-paying skilled jobs in towns of Uttarakhand.

The above discussions show that climate refugees require country-specific approaches. To that end, bilateral agreements can be a potential solution to engage with the problems of climate refugees effectively and come up with real-time policies and mechanisms to alleviate their plight.

Conclusion

The existing framework, as shown above, does not adequately address the issue of climate refugees and regional refugee instrument in South Asia that defines the refugees, reaffirms the principle of non-refoulement and adopts a flexible approach to the refugees. India, in particular, needs to take the lead as a major regional player by coordinating its policies with international human rights standards. Creating a regional instrument on refugees that specifically addresses climate refugees can offer a strong legal basis to handle the unique difficulties that South Asian countries face. Furthermore, by taking into account the particular circumstances in each nation, bilateral agreements between South Asian nations might provide specialised solutions for displaced persons. Ergo, the universal obligation of non-refoulement are complementary and supplementary to the specific nature of bilateral agreements.

Find Part 1 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.