Article by Shrutika Pandey and Rongeet Poddar,
The Global Compact on Refugees, adopted by the UN General Assembly recently recognized that ‘climate, environmental degradation with natural disasters increasingly interact with the drivers of refugee movements’. The most alarming manifestation can possibly be witnessed in the environmental crisis unfolding in South Asia. Heavy leading to displacement and loss of life, worsening water scarcity and an alarming rise in the seal-levels are some of the most pressing issues before India today.
A recent report by UNICEF recognises climate change as a significant push factor, displacing families and making livelihoods unsustainable on the cyclone-prone India-Bangladesh coast. The influx of Rohingya refugees from Myanmar and the spurt in makeshift refugee camps have accelerated environmental degradation due to the consequential pressure on resources. Cross-border migrants live under a constant threat of deportation with governments for the lack of temporary policy intervention, for instance humanitarian visas. The situation worsens with a hastily drafted National Register for Citizens seeking to expel ‘illegal’ immigrants from the north-eastern state of Assam, with the country’s eastern frontier being highly porous for climate-induced migration.
One fall-back for this aggravated situation could be Nansen Conference on Climate Change and Displacement. In 2011, under the aegis of the United Nations High Commissioner for Refugees (“UNHCR”), the Nansen Conference had initiated the first major inter-governmental dialogue on the climatically displaced. There is limited precedent where an unstable ecosystem singularly displaced a population. However, the unique scenario in South Asia today calls for a further context-based evaluation of this pressing problem.
Locating protection in the existing International Law framework:
The international legal regime has failed to offer concrete protection to the climatically displaced. In response to this problem, New Zealand's Court of Appeal has observed the lack of protection under the 1951 Refugee Convention.
The lack of protection under the Refugee Convention of 1951 attracts the classic definitional crisis for these displaced and a restrictive definition of ‘refugees’. The more serious concern which remains unaddressed presently is the sheer lack of political will globally. The climatically displaced do not qualify for protection under the international refugee law regime because of the difficulty in isolating climate as a singular marker of forced migration. While it is likely that climate change can exacerbate the existing markers of persecution under the Refugee Convention, it creates a major gap to address the modern-day problems arising due to climate change in the archaic model of the instrument. For the exclusivity of the convention, it is often argued that the individualistic nature of the instrument would be a misfit to address the collective rights of the climatically displaced. Moreover, opening a valve for inclusion would devalue the current protection for refugees and make access to asylum programs even more difficult.
Turning to the international human rights law regime, the challenge is to identify a violator, in the strict legal sense. Climate change itself cannot be said to be human rights violation perpetrator. As far as affixing responsibility is concerned, the Office of the United Nations High Commissioner for Human Rights (“OHCHR”) has remarked that it is impossible to ascribe responsibility to certain member-states for the deterioration of human rights in an area affected by climate change.
There are arguments on both ends to explore the relatively small body of international environment law to locate protection for the climatically displaced. Exploring the possibility of an expansive analysis of Article 2 of the United Nations Framework Convention on Climate Change (hereinafter “UNFCCC”) gives a logically plausible solution to address climate-induced displacement. Employing present strategies to address the issue will not only enhance the framework’s adaptation but also attribute it to a broader idea of development.
The Paris Agreement, 2015 acknowledges the legal quandary of the climatically displaced. The first use of the word ‘migrant’ in relation to climate change, lies in the preamble itself. An express acknowledgement of the problem can be found in UNFCCC’s 2010 agenda where it incorporated climate-induced migration under Article 14(f) of the Cancun Adaptation Framework.
The way forward
New Zealand’s proposal of introducing a humanitarian visa for the climatically displaced in the Pacific Islands could be a possible cue for the South Asian countries. However, national level responses in isolation are probable to fall short of tackling the plaguing crisis of climate-induced displacement in the region.
The soft-law approach under the international environmental law regime remains the most flexible route to address climate-induced migration by employing the principle of common but differentiated responsibilities. This mechanism can serve as an effective vehicle to channel financial, technical and other requisite support to developing countries, particularly vulnerable to the onset of slow and sudden climatic factors leading to displacement. Being the worst affected, it is time for South Asian states to forge a regional alliance to engage in collective bargaining with the developed countries. As a major destination country, the onus is on India to take the lead to find region-wide solutions which could include equitable quotas for sharing the burden of climate migrant inflows that take due cognizance of the emerging climate-induced migration patterns and respective capabilities of the SAARC countries.
The UNFCCC negotiations explored the possibility of adopting an organized migration and relocation framework under the aegis of the Climate Change Displacement Coordinate Facility. It envisaged the provision of emergency relief, compensatory measures and planned relocation. With the detrimental impact on the geophysical and socio-economic conditions in South Asia, there is a growing clamour for reconsidering the proposal. The impending Climate Change Conference at Santiago offers an ideal platform for adopting a holistic resettlement programme for the climatically displaced.
With the lack of comprehensive data on climate-induced displacement, experts predict significant population movement around the world. Piecemeal mitigation approaches such as the creation of a Migration, Environment and Climate Change Division seems exiguous in the long term to combat the expected adversity. In the given circumstances, the international community must commence multilateral dialogue for considering the viability of an independent international treaty with the active collaboration of destination and affected countries. A stand-alone convention under the international environmental law regime with a comprehensive definition of ‘climatically displaced’ with binding guarantees of non-refoulement, assistance and shared responsibility should be the way forward.