Environmental Refugees: Legal Recognition and Protection under International Law

INTRODUCTION

The International Organization for Migration (IOM) defines environmental migrants as “persons or groups of persons who, for compelling reasons of sudden or progressive change in the environment that adversely affect their lives or living conditions, are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their country or abroad.” While the definition points out the origin of such migration, it is not solely an ecological problem but a multi-causal problem where ecological and socioeconomic vulnerability act together to displace marginalized people.

The onset of climate-induced migration has sparked a highly politicized debate as to its causal connection and scope, however, a complex understanding between climate change and migration is yet to be achieved. Environmental migration remains one of the pressing issues of today’s world and despite the growing scope of this phenomenon, there exists a large gap in the international law providing protection to displaced migrants.

The article examines the relationship between climate change, human displacement and international law. The first section delves into several ways that climate change affect migration ranging from abrupt disasters to slow-onset environmental degradation. It then analyzes the current legal framework and their shortcomings in dealing with climate induced migration, emphasizing the legal loophole that exists under international refugee law. Subsequently, the article discusses the various policy implications and provides suggestion, stressing the necessity of an all-encompassing approach that considers both long-term resettlement alternatives and preventive measures. Finally, it ends by underscoring the necessity of creating a cogent international framework to address what will likely be one of the defining humanitarian challenges of the 21^st century.

UNDERSTANDING CLIMATE CHANGE-INDUCED MIGRATION

Climate change has become a living reality responsible for uprooting communities, displacing millions and redefining the term “home”. It drives migration through rapid-climatic disasters and slow-ecological degradation, especially by disrupting how people live near and depend on water for life and livelihood such as by shrinking freshwater access, increasing sea levels, and impacting coastal and agricultural livelihoods.

Rapid-climatic disasters such as cyclones, hurricanes, and floods, are sudden disasters intensified by rising ocean temperatures. In 2023, Cyclone Mocha displaced around 13,50,000 people in Myanmar and Bangladesh, while catastrophic floods in Libya displaced tens of thousands exposing the critical consequences of climatic vulnerabilities. Meanwhile, slow-ecological degradation, such as droughts and rising sea levels, gradually erode the standard of living and livelihoods of people over time. In Somalia, the lengthen drought has had an effect of large scare internal migration due to factors such as decimated agriculture coupled with economic and political instability. Similar patterns is recurring across Horn of Africa, distinctly in the place of Kenya and Ethiopia which are facing vanishing pastures.

According to data released by World Bank, over 140 million people could be internally displaced in South Asia, Latin America and Sub-Saharan Africa regions due to climatic pressure by 2050. The countries like Tuvalu and Kiribati situated in Pacific Islands, face life-threatening hazard from encroaching seas, inducing people to relocate or find safety overseas. 

These climate migrants include those who are forcibly displaced, voluntary migrated and those who are trapped and unable to leave due to isolation or poverty. However, climate migrants do not have legal protection under international law despite their numbers increasing. The ramification extends beyond physical movement and include loss of identity, human rights concern and economic hardship.

CURRENT LEGAL FRAMEWORK AND CHALLENGES

Human rights issues, despite being deeply entwined with the consequences of climate change, have been conspicuously absent from the dominant narratives and frameworks addressing climate change. The term ‘refugee’ has a restrictive meaning in the international law as the 1951 Convention Relating to the Status of Refugees defines refugees as persons fleeing due to well-founded fear of persecution on grounds of race, religion, nationality, political opinion or membership of a particular social group. This creates a recognition and protection gap for victims of climate-induced migration by confining the scope of the term ‘refugee’, essentially regarding the term ‘environmental refugees’ as conceptually flawed. Thus, under the international framework, climate migrants have the right to admission and the right against non-refoulement only when climatic factors are coupled with enumerated grounds for migration under the 1951 Convention.

Notably, the casual relationship between climate change and migration has been recognized in the UNFCCC, the 2009 Report of the UNHRC on Human Rights as well as in the UN Sustainable Development Summit 2015, many heads of states called to address them collectively. However, this matter is primarily a moral concern rather than a legal one, as currently there is no international legal instrument that addresses climate-induced migration.

In the absence of a global agreement, unilateral measures have been taken by certain states under regional frameworks including the 1969 Organization of African Unity Convention and the 1984 Cartagena Declaration to include persons compelled to flee due to events seriously disturbing the public order. Temporary protection has also been interpreted in the existing laws such as the Temporary Protected Status (TPS) created by the US Immigration Act of 1990 which allows certain migrants the right to live and work in the US for up to 18 months if the situations in the home countries are considered unsafe for returning. Voluntary guidelines and initiatives such as the Nansen Initiative leading to the establishment of the Platform for Disaster Displacement provide remedy to certain extent. Adding to these legislative efforts, the French court has taken a significant step by granting “sick foreigner” status to a Bangladeshi man in 2017, taking into account the pollution in his home country. In spite of these regional initiatives, such measures remain exceptions to the prevailing norm, which excludes climate-induced migrants from being classified as refugees.

POLICY IMPLICATIONS

With the increasing scale of human-induced climate change, there is a strong call for policy initiative in the form of a comprehensive framework to address the issue and adapt to the changes. Given the complex multifaceted nature of the issue, policy interventions need to target the different yet inter-connected layers, including ecological vulnerability, socio-economic disparities, and inequalities in adaptive capacities.

One of the fundamental lacunas of the existing international framework for migrants is its underlying assumption that migrants return to their place of origin once the crisis subsides or after the completion of post-disaster rehabilitation phase. However, in cases where the environments have become deteriorated and inhabitable because of climatic disasters, the assumption is materially unsound. A policy that exclusively addresses displacement after disasters may fail to protect a broader range of vulnerable individuals. Consequently, it is essential to incorporate an approach based on human rights perspective that reduces susceptibility to climate change prior to disasters and ensure long-term, sustainable resettlement for environmental migrants in their aftermath.

As the instances and impact of human-induced climate change is increasing, the governments across the globe are framing policies to adapt to the changing scenarios. These policies are majorly focussed around climatic disaster as the singular factor for displacement without considering that the problem is multicausal and hence, the policies framed must address these different factors. These include ecological vulnerability, socioeconomic vulnerability, marginalization, and disparities in adaptive capacities.

Furthermore, while the primary response towards climate-induced migration has been evacuation efforts, the appropriate response should be measures to increase adaptive infrastructure. Sustained investment should be directed towards building post-disaster infrastructure and proper informational networks to build long-term resilience, especially when evacuation continues to be the primary response to natural disasters. Particularly, in developing nations where household income and subsistence are often closely tied with productivity of land, marginalized people displace because their livelihoods are dependent on ecology and highly vulnerable to the effects of climate change. Policies aimed at building resilience, diversification of local economies, and job trainings can be a sustainable solution to this problem.

For cross-border displacement, a proposed solution is the expansion of the 1951 Refugee Convention to include environmental displacement as a valid ground for refugee status. Politicians in ecologically vulnerable countries, particularly the Maldives and Bangladesh, have even called for this. However, this is not the best suited legal mechanism to address the plight of EDPs because first, the Convention is a humanitarian one addressing temporary problem of displacement and second, EDPs are predominantly internally displaced within the country of origin. Therefore, the development of a new international instrument specifically addressing environmental displacement by establishing clear definitions, obligations for states, and mechanisms for support and resettlement of affected populations seems a possible solution. However, the proposals have significant variations in approach with no common agreement reached yet.

Countries within the geographic regions often have similar levels of climate vulnerability, making them more likely to cooperate with each other and accept EDPs. In such scenarios, regional treaties have demonstrated to be an effective way of approaching cross-border displacement. However, these fail to consider the regional political conflicts and instances of significant differences in the climatic vulnerability even among the neighbouring countries.

In conclusion, the scarcity in research are an effect of void of environment withing conventional migration studies. Therefore, to achieve the feat of embedding environmental factors into theoretical legal frameworks, it is necessary to achieve a quantum leap in the understanding of how environment and migration influence each other. Moreover, there is a growing recognition that interdisciplinary strategies based on robust empirical studies are essential for supporting governments especially in crafting policies that are realistic and actionable.

CONCLUSION

One of the significant challenges in today's world is human-caused climate change, and efforts have been undertaken to create a comprehensive framework at both international and national levels.  Up to this point, these endeavors have not succeeded in providing a comprehensive management approach or a lasting solution to address the link among climate change, human rights, and international law.

The issue is complex, with policymakers finding it difficult to define and conceptualize the term, causal relationships, and the scope of the proposed framework. This complexity constitutes a major challenge.  With climate change worsening globally, it is expected that the number of people displaced due to environmental factors will be vast and unprecedented in the future.  This creates a worrying scenario where policy initiatives aim to translate regional successes into a comprehensive international framework for environmental refugees, involving legal recognition and the establishment of clear protection and assistance protocols through cooperation among nations, international entities, and civil society to foster future global stability and resilience.

The Blog has been authored by Avantika Raghuwanshi (a Fifth-Year Law Student at Chanakya National Law University, Patna and and Syed Sultan Ali (a Third-Year Law Student at Chanakya National Law University, Patna).