Environmental Refugees – Error 404: Not Found in International Law

by Ritika Goyal

(first published on University of Oxford Border Criminologies Blog)

“Although there is a growing awareness of the perils of climate change, its likely impact on human displacement and mobility has received too little attention.” António Guterres, UNHCR

“Sinking Islands”, “The Land of No Tomorrow” and “Vanishing Paradise” are the local catch-all phrases used to describe the countries that are being hard hit by the effects of climate change and face the fear of being wiped out from the world map.  Sione, a Tuvaluan says “Maybe one time Tuvalu will disappear. From what I can see a lot is already gone. I think one day we will disappear.”  In 2014, the former President of Kiribati bought a plot of land in Fiji so that the citizens would have a refuge when their homeland becomes uninhabitable. In 2016 Australian researchers discovered that five islands in the Solomon Islands had been lost to rising seas.  The World Bank has estimated that three regions alone (Latin America, sub-Saharan Africa, and Southeast Asia) have the capacity to generate 143 million more climate migrants by 2050. In 2017, 22.5 million to 24 million people were forced to move by “sudden onset” weather events—flooding, forest fires after droughts, and intensified storms. For them, moving is not a matter of choice but a matter of survival.

 

Prohibited use of terminology

Despite the situation described above, people displaced due to climate changes don’t qualify for protection under 1951 Refugee Convention. Under the Convention, a refugee is a person who is unable to return her/his country “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and therefore, climate refugees fall outside the ambit of this definition. Presently, the term “environmental refugees” or “climate refugees” has no basis in international refugee law. This term was first used by an expert Essam-el-Hinnawi in 1985, denoting those people who had been forced to leave their traditional habitat, temporarily or permanently, because of marked environmental disruption (natural and/or triggered by people) that jeopardized their existence and/or seriously affected the quality of their life.  Even though the United Nations  has recognized  that ‘climate, environmental degradation and natural disasters increasingly interact with the drivers of refugee movements’, it has repeatedly stated that use of the term “environmental/climate refugees” should be avoided as it is inaccurate and misleading. In contrast, the European Union has suggested that there is enough scope? Or are grounds for integrating environmental refugees into subsidiary protection due to a large normative gap in international refugee law, for persons fleeing their country of origin for environmental or climate reasons. Additionally it stated that the term ‘environmental migrant’ widely used by IOM (UN) suggests a degree of volition in the decision to move and might not always be considered appropriate.

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Case of Ioane Teitiota, a national of the Republic of Kiribati

Dina Ionesco, Head of the Migration, Environment and Climate Change (MECC) Division at the UN Migration Agency (IOM) has given varied reasons as to why the term ‘climate migrants’ is preferred over ‘climate refugees’. Firstly, she states that climate migration is mainly internal, people are not crossing borders or seeking protection from a third country. Secondly, as opposed to refugees, migration is not necessarily forced, which according to her, is the case with environment induced displacement too. However, when we apply these principles to the case of Ioane Teitiota, we find various discrepancies.

Ioane had sought asylum in New Zealand claiming that the situation in Kiribati was becoming increasingly unstable and precarious due to the sea level rise caused by global warming. When refused by the Immigration and Protection Tribunal and Supreme Court of New Zealand, he filed the case in the UN Human Rights Committee. The dissenting members noted that the climatic conditions in Kiribati posed a real, personal and reasonably foreseeable risk of threat to his life under Article 6(1) of the ICCPR. This was due to scarcity of habitable space causing life endangering violent land disputes, contamination of water supply, destruction of food crops, frequent floods and children getting diarrhoea and dying because of the poor quality of drinking water. In this case, ‘migration’ was forced rather than a matter of choice. It was a matter of survival for Ioane and his family.

Despite the threats outlined to Ioane’s health and safety, he was refused protection by the Committee since there was no specific or imminent harm to him; instead it was regarded as a general risk faced by all individuals in Kiribati. According to members of the Committee, he failed to provide enough evidence that potable water was not available or crops couldn’t be grown. When it was argued that the island would sink in 10-15 years, the Committee held that there was enough time for the Republic of Kiribati to take affirmative measures, with the assistance of the international community.

Nonetheless, this judgment is a landmark one because the Committee acknowledged that environmental degradation can adversely affect an individual’s well-being, compromise effective enjoyment of the right to life and propel cross-border movement of individuals seeking protection from climate change-related harm. It observed that risk of an entire country becoming submerged under water is such an extreme risk and the conditions of life in such a country might become incompatible with the right to life with dignity, before the risk is realized. It noted that without robust national and international efforts, the effects of climate change in receiving states might trigger the non-refoulement obligations of sending states.

 

An extension of ‘polluter’s pay’ principle

When national governments, (usually the world’s poorest states) are burdened with the responsibility of environmental refugees,  then the polluter countries are absolved from the liability caused due to their environmental destruction, which ultimately affects poorer nations and drives its citizens to seek refuge in other countries due to uninhabitable climatic conditions in their countries. To expect impoverished states to respond to environmental calamities that are not of their own making is failure to hold rich countries responsible for their lavish lifestyles. People whose environment is being damaged and destroyed, who are losing their lives and livelihoods, should be recompensed and protected by those responsible. By imposing legal responsibilities of environmental refugees on the industrialized countries under international law, they will be forced to accept their obligation towards climate change. The idea of environmental refugees is therefore, an extension of ‘polluter’s pay’ and ‘common but differentiated responsibility’, principles laid down in United Nations Framework Convention on Climate Change.

The richer countries of Global North should pay the costs of their own pollution. The Council of Europe has also stated that the industrialised countries carry a particular responsibility to Global South affected by human-made climate change, and should therefore appropriately provide asylum to climate refugees. However, illustrative of the hypocrisy of the Global North, a perfect example is the Australian Prime Minister Kevin Rudd offering citizenship rights to people of a sinking island, Tuvalu, also designated as the ‘least developed country’ by UN, in return for getting the country’s maritime and fisheries rights. On the other hand, countries like Finland and Sweden have laws offering temporary protection to people because of an environmental disaster.

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A Way Forward

Currently, climate refugees can receive protection under the 1951 Refugee Convention only if environmental destruction is used as a weapon against a certain group or if natural disasters are linked to situations of armed conflict rooted in racial, ethnic, religious, or political divides. Under the EU’s Qualification Directive, when the return to a country is gravely affected by climate change to the point where the situation becomes unbearable, it might fall within the concept of inhuman or degrading treatment under Article 15 (b) of the Directive, thereby, granting them protection. However, this is not enough to cover the entire climate related cross border movements. The Geneva Convention should be expanded to incorporate a new category of “environmental persecution”. However, this proposal has been refuted by the United Nations because it feels that opening the 1951 Convention to negotiation might be used by powerful nations to weaken the refugee status.

A new legally binding instrument could be introduced containing criteria according to which refugee sending countries and recipient-countries could be identified along with concrete sanctions, state responsibility, and an enforcement mechanism in the case of violations. In order to differentiate between sender-countries and recipient-countries, the instrument could include criteria such as per capita greenhouse gas emissions and per capita income (gross domestic product), degree of development or region. The 1998 Guiding Principles on Internal Displacement which apply to situations of “natural and human-made disasters” in the context of internal displacement, can provide a useful template for the treatment of those displaced externally too. Another option can be to address environmental refugees within the United Nations Framework Convention on Climate Change. This would avoid the need to design a new legal framework. The countries that are most responsible for global environmental degradation must acknowledge their role and bear the responsibility of environmental refugees. Placing new international obligations on them towards environmental refugees would play an important role in kick-starting this process.

ABOUT THE AUTHOR

Ritika Goyal

Ritika Goyal is a law student at National University of Study and Research in Law (NUSRL), Ranchi. She has profound interest in International Human Rights Law and matters concerning Public Policy. She can be reached at ritika.goyal42@gmail.com

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