Climate change in the modern era has been accelerated manifold by industrialisation primarily in the Global North. Greenhouse gas emissions, dumping of industrial waste in water bodies, and other human activity has led to an increase in global temperatures, leading to disastrous consequences in the international sphere. Some effects of global warming include rise in sea levels, glacier retreat, and change in timing of seasonal events, changes in agricultural productivity, precipitation patterns, extreme weather changes, acidification in seas, etc. These effects directly impact livelihood of people in affected areas, decrease in crop yield and subsequently lead to a food security crisis, negatively impacts health, leads to a shortage of water resources in some areas and an abundance in others, the geo-bio diversity in the regions, an increased risk of extreme weather conditions like floods, storms, droughts, etc. The regions most affected by climate change have been Africa, Asian mega-deltas and small island states in the Pacific.
Cross-border movements induced by climate change have given rise to a pertinent issue in international law on whether to treat such persons as migrants or as refugees, given that there are widespread legal implications attached to each concept. Large numbers of people face an inevitable risk of partial or complete submergence – especially the small island nations across the Central Pacific, South Pacific and the Indian Ocean, and also large tracts of land from Bangladesh to Egypt. Shoreline submergence, coastal flooding, etc. are imminent threats faced by these nations, which will be adversely impacted in terms of agricultural productivity, vital infrastructure and services, the stability of governance and human life in itself.
International Law doesn’t clearly deal with the issue of climate change refugees, although they are displaced across borders due to the effect of climate change and may find themselves in a refugee-like situation. The International Refugee Convention of 1951 read in conjunction with its 1967 protocol defines “refugee” as someone who:
Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Obstacles faced in a claim under international refugee law are manifold. It only recognises forced migration from a state. Unless they fall within the above mentioned categories, they can be interdicted, expelled and detained. Planned migration in anticipation of such environmental threats is a normal human adaptation strategy but isn’t accounted for in international law. Definitional obstacles in applying refugee law are but one of the many legal hurdles faced by claims for climate change refugees. Other concerns include the situations of those who haven’t yet moved out but face the eminent threat of environmental degradation – IDPs (Internally Displaced People) are those who have been displaced. The characterization of climate change displacement as “persecution” is another obstacle faced by refugee law. Persecution on account of the above mentioned principles only are valid in a claim for refugee status. The voluntary migration in search of a “better life” seems to negate the notion of a persecution or expulsion from the state of its own citizens, devolving it of responsibility in the legal sense
The Risk – Small island states
Climate change is defined in the UNFCCC as “a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to other natural climate variability that has been observed over comparable time periods.” Though there are other causes which compound together to compel individuals in an affected state, there is no doubt about the part climate change plays in doing so. Small island states like Tuvalu and Kiribati islands in the Pacific Ocean, Inuit in the Arctic regions of Greenland, Carteret Islands of Papua New Guinea, and Bangladesh face tangible threats of the consequences of climate change overpowering their livelihoods and homes and displacing them. Though there exists a relationship between climate change, environmental events and the displacement/movement of people, it is difficult to ascertain exclusive causality among the factors using current scientific procedures.
State responsibility and the north-south divide
The IPCC has recognized the greenhouse emissions by the industrialized north during the 20th century as being a major contributor of climate change. There have been calls on industrialized countries to compensate those they have affected in order to make up for the damage caused. The 2001 Draft Articles on the Responsibility of States for Intentionally Wrongful Acts of the ILC provide that states are responsible for intentionally wrongful acts. However, apportionment of blame becomes a contentious issue if a claim is sought on these grounds.
- Private corporations in industrialized countries generate high amounts of waste. States become responsible to the extent that they fail to regulate such activities.
- Clear and convincing evidence is difficult to produce in apportioning causal blame to any player.
Second, state responsibility applies only to the extent of emissions whose amounts are prohibited by international law. It is based on the principle of Common But Differentiated Responsibilities – it commits developed states to adopt domestic policies to give effect to international obligations but doesn’t contain a specific reduction obligation. The responsibility to reduce emissions is a common goal but it rests differently on the developed, developing and under-developed countries. The largest burden is sustained by the developed countries, owing to the proportion of their emissions. Such obligations are not enforceable in its entirety and cover only a small part of the overall amount of emissions. Any claim would necessarily have to be backed by proof of the state’s responsibility with regard to specific emissions, which is doubtful and places an enormous burden of proof on states.
Claims brought under various specialisations of international law and difficulties to substantiate claims therein shall further be discussed.
Claims under international law
Under the ambit of international refugee law, difficulty in substantiating claims arises from definitional roadblocks. Climate change displacement occurs over a period of time, as opposed to sudden displacement like that faced by traditional refugees. The displaced people do not fit into the definition of “refugee”. Environmental changes cannot readily be characterised as persecution under the principle of non-refoulement. Additionally, the requirement of exile may not be fulfilled as it is a voluntary migration undertaken by residents, which means the state itself isn’t acting in a detrimental manner towards its citizens in matters of race, religion, nationality, political opinion or membership of a particular social group. A large part of those displaced might be IDPs, which is governed by soft law principles, not binding treaties.
The formulation of rights and claims under international human rights law exists against the state. It provides a way of assessing which rights are being compromised by climate change and provides a mechanism of devolving primary responsibility on national authorities. In extreme cases where there is a loss of the physical state, resulting in a situation of statelessness, the right to self-determination of a people is threatened. However, international law doesn’t anticipate these eventualities and those displaced are not protected by the international statelessness regime. The legal definition states that statelessness occurs when there is a denial of nationality through an operation of the law of a particular state, not by the disappearance of the state altogether. This narrow interpretation negates protection by the persons of Tuvalu and Kiribati islands, which have a legitimate concern of their territory being submerged.
Under the ambit of international environmental law, the global climate is a part of a “common pool resource” which is of great importance to humanity. Customary international law mandates states to control pollution and conserve biodiversity in their respective states. States have an obligation not to knowingly allow its territory to be used for purposes which might be detrimental to other states, as was laid down in the Trail Smelter arbitration. Refrainment against causing trans-boundary environmental harm is an established principle. The Kyoto Protocol has succeeded to some extent, in helping to identify causation of emissions. It places an obligation for international players to engage in efforts to reduce global warming. It is also accepted that the right to environment is essential to fulfil the right to life of any individual. Regional human rights treaties like the 1981 African Charter on Human and People’s Rights and the 1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights provides for the right to a satisfactory and healthy environment. It also obligates states to promote the protection, preservation and conservation of the environment.
The limitations faced by application of environmental law include the prioritization of states over individuals as claimants, as it lies primarily between states and individuals enjoy lesser legal capacity. The problem of quantifying the amount of carbon emissions and identifying causation remains a pertinent issue here as well. Compounding to this, the responsibilities of corporations which have a major role to play in contributing to toxic wastes in the environment, cannot be adjudged affectively. The states remain the primary unit in a legal system.
There have been proposals to overcome these limitations, and though they might not be viable, they are creative and give us a different perspective. Byravan and Chella Rajan propose that there should be an option provided to people who live in areas where a climate change is palpable and there is a foreseeable displacement as a consequence. The numbers of such people must roughly equate to the host countries’ (mostly the industrialised North) cumulative greenhouse gas emissions. This would imply that each year USA would have to accept 866,000 people as the highest emitter. However, this approach falls short of acknowledging other contributory causes in any displacement situation, overlooking various factors which have compounded together with climate change. This approach is not a long term vision.
Suggestions and solutions
When protection claims are sought individually under the various provisions discussed above, the result seems to fall short of a concrete solution. The lack of a dedicated institution to address the threat of climate change and its consequences does little to contribute to the institutional stagnancy faced by the affected people. A recent ruling about a claim over climate change refugee status involving parties from Tuvalu islands and the host country of New Zealand has restarted the debate about the need for a concrete solution and a way forward. The ruling was in favour of the refugees’ right to stay in New Zealand, but the Court did not engage too much with the claim of climate change-necessitated migration.
The principle of Responsibility to Protect (R2P) propounds that in cases where the state is unable or unwilling to provide protection to its citizens, the responsibility to protect them in such dire situations rests on the international community. It was primarily designed to address events which have been created wholly by man and not multi-causal events which span over a long period of time and get accumulated resulting in a phenomenon. Even so, if R2P was applied to climate change refugees, it still falls short of a legal norm. It provides a guiding principle for state action but in absence of a concrete binding obligation or a treaty backed with sanctions, only spirited NGOs and other inter-governmental bodies can take the cause forward.
By: Vidushi Sanghadia
Report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect, December 2001
International Refugee Convention, 1951 in conjunction with the 1967 Protocol
Climate Change (IPCC) (2007)
Convention relating to the Status of Refugees of 28 July 1951; 189 UNTS 137.