ENVIRONMENTAL REFUGEES: MYTH OR REALITY Pranav Kaushal BASICS OF LAW Mon, Nov 04, 2019, at ,07:25 AM INTRODUCTION “There will be more than 50 million refugees by the end of the year 2020[1]”- Ban Ki Moon (Former Secretary-General of United Nations) A refugee in the earlier time was referred to be as someone who flees due to the fear of persecution or is expelled from his country and seeks asylum in different countries. The era of the medieval period reflects the history of the refugees wherein the church performed the function of granting protection to the individuals who had been persecuted by their own countries. These individuals were termed as refugees in the year 1921 by the ‘League of Nations High Commission for Refugees.[2] The convention only defined a refugee as a person who flees persecution from his home country on the ground of race, religion, caste, and nationality.[3] The convention was when drafted, its main objective was to provide protection to the migrants and to ensure the safety of migrants and adherence of the Universal Declaration of Human Rights (UDHR)[4]. The major area where the lack of dynamism can be seen in the Convention was the area of its persecution. When the convention has drafted the meaning of the word persecution was restricted to the treatment that was violent, cruel on the ground and such kind of treatment[5] was common during the world wars and one of the prominent reasons why people fled to another country. However with the change in the economy as well as a change in the climatic conditions people also started fleeing to other countries on the emergence of new grounds. One such ground changed in the climatic conditions including natural calamities including earthquakes, floods, famine, droughts, etc.[6] Due to the restrictive nature of the definition of refugees, people migrating or fleeing to other countries on the ground of the climatic conditions were not termed to be refugees per se and were not granted any kind of protection.[7] Lack of recognition on the part of the state led to the emergence of the concept of environment or climate refugees and the demand for their recognition within the convention. In common terminology, the term refugees mean to refer a person who has fled away from his country due to any reason, might be internal aggression or external aggression or due to fear of death. But the term “environmental refugees” is still unknown to the general masses. The term environmental refugees have been held to mean exodus from the home country due to natural disasters or natural calamities.[8] The current debate on the concept of climate refugees is one of the most controversial in recent times. In the year 1980’s Essam El-Hinnawani defined environmental refugees as the people who have been forced to leave their traditional home and habitat whether temporary or permanent because of continuous environment disruption that has affected the civilization and had seriously affected the quality of life.[9] Refugees have been granted protection under the Convention relating to the status of Refugees 1951(CRSR)[10] and also in the Protocol relating to the status of refugees (PRSR)[11]. With the use of modern technologies in the modern century, human beings on a very large scale affecting and exploiting the environment in order to fulfill their self needs. Thus, this has given rise to the two major problems one is global warming and the other one is climate change. Climate change is rapidly becoming one of the major problems for the migration of people from one state to another. The United Nations High Commission for Refugees has estimated the increase in the sea level, drought areas, and severe weather conditions which will uproot 250 million people by the end of the year 2050.[12] Most of the refugees are expected to come from Asia, America, Africa and Latin America. Displacement of people from one state to another due to the climate change affects the economy of a particular country and creates a burden on the other state. These countries have to deal with the sudden influx of climate refugees that knock at the doors of the other state. Earthquakes, floods, drought, and hurricanes are considered to be divine retribution. But still, we used to refer to these phenomena as the act of God. But if the scientists are also to be taken into consideration they would believe that God seems to be getting more and more vengeful year after year. It is not the vengeful attitude of god but it is the act of all human beings which has contributed a lot in this to make the earth a paradise of pollution and natural calamities. It is also pertinent to know that the Convention relating to the Status of Refugees and Protocol Relating to the Status of the refugees were drafted nearly seven decades before but such convention has not taken into the consideration those person who flees from their own country on the ground of the natural calamities as the drafters of the same convention were unaware about same fact and conditions about the environmental refugees. As a result, the climate or environmental refugees were out of the purview of these conventions. ENVIRONMENTAL REFUGEES- AN UNDEFINED FICTION “No one puts their children in a boat unless the water is safer than the land”.[13] There are as many conventions in order to safeguard the rights of the refugees but none of them grant protection to the people fleeing from their country to the other due to environmental disasters. However, the demand has been raised by any experts and jurists that the term used in the definition of refugees i.e. ‘persecution’ shall be amended suitably as per the needs of the society.[14] Professor Lester Brown [15] who coined the term environment refugees termed by Lester Brown as a group of people that are forced to leave their homes due to the changes in the climatic conditions or changes in the environment which has compromised their livelihood and well being. Climate refugees are already looking for their homes in the new country. In Bangladesh, thousands of people are often rooted by floods. Many of them make their way to West Africa and forced them to take shelters at the borders of the other countries. With the passage of time, many of the countries agreed on the fact that due to the climatic conditions or climate change human beings are forced to migrate to the other countries but recognition of such carries an ambiguity within itself. The problem of whether refugees will be called to be as climate refugees was answered by Professor Irene Khan which has laid four tests to identify the same[16]. These are; Voluntary movement Crosses International Boundary Due to rapid trigger Such displacement is related to climate change. It is important that such displacement of the people has been caused due to environmental reasons only, otherwise, any sort of plight based on the factor of politicization and under corruption will not be held to be environmentally induced and will not be protected under such regime.[17] RECOGNITION OF ENVIRONMENT REFUGEES: SOVEREIGNTY OF HUMAN RIGHTS The most prime concern about the environmental refugees is the lack to provide international recognition and the unwillingness of the concerned state to accept the same people within their territory. The judgment of the New Zealand Supreme Court in the case of AF Kiribati[18], the court rejected the application to grant the refugee the status of environmental refugee on the ground of the climate change in the Pacific island of Kiribati.[19] The judgment delivered by the Supreme Court of New Zealand failed to take into consideration environmental degradation. However, the Supreme Court of New Zealand was the first country that rejected the contentions for the same but there are many countries[20] who are against the norms to provide protection to the environmental refugees and considered them as a burden on themselves.[21] In this particular case, it was contended by the state that if they accept the person who is considered himself to be an environmental refugee, the same will open all four doors to the millions of people who are facing similar situations and will increase the burden on the state. Thus there are many instances where the court rejected the petitions to grant the status of environmental refugees to the fleeing person on the account of environment degradation.[22] Thus cases have also been registered where the country refused to grant even the entry to the refugees who have suffered from environment degradation traumas on the ground that the state cannot maintain such refugees due to the lack of resources to cope with the influx.[23] Thus such kind of untenable arguments appears to be in contravention against the norms settled by United Nations High Commission for Refugees which has pleaded to provide sufficient funds to the countries to accept such refugees thereby rejecting the entry of the environment refugees on such grounds appears to make the state totally invalid on the part of their contentions.[24] Many times the state raises the issue of the sovereignty of the state as the ground for rejecting refugees and put forth the contention that the state has the sole discretion to determine whether the foreigner or the refugee should be given shelter in their own country.[25] Such acts of the state abrogates and evades the principle of non – refoulement which creates obligation on the state to protect the individual whose life is threatened on the ground that the same is applicable for refugees in the territory of the host states[26] and the border[27] thereby terming their acts of refusing entry valid if the refugees are at the border. Thus, the principle of non-refoulment provides for the protection of refugees from being returned to a place where their lives were threatened.[28] This principle has not only attained the status of customary International law but also a jus cogens norm[29] obligates the state to protect the refugees. Therefore by virtue of the binding nature of the principle, every state is bound to allow environment refugees to enter into the territory whose life is threatened due to the existence of natural calamities. Since the refugee law is connected and concerned with the rights of refugees it also has a link with the human rights law as well.[30] In extreme and extraordinary circumstances the state is under the obligation to ensure the safety and security of the individual and also to have the essence of human rights.[31] These basic human rights are essential in order to maintain peace and harmony, however, still regard to the human rights policy person whether refugee or environmental refugee are denied basic human rights. [1] Report of Secretary General, “International Migration and Development”, (United Nations A/71/296) https://www.un.org/en/development/desa/population/migration/generalassembly/docs/A_71_296_E.pdf accessed on 12 July 2019. [2] James E. Hassell, “Russian Refugee in France and United States Between the World Wars”, (1991) Volume 25 (IV) (Transaction of the American Philosophical Society) https://doi.org/10.1163/221023991X00623 accessed 14th July 2019. [3] Refugee Convention 1951, at Art. 1. [4] Universal Declarations of Human Rights, G.A. Res. 217A, U.N. Doc. A/810 (Dec. 12, 1948) https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf accessed 14th July 2019. [5] Briefing Paper, “Refugees and the Third World, (Overseas Development Institute”, (OJB) London 1983, https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/6678.pdf accessed on 15th July 2019 [6] Alexander Betts, “Survival Migration: Failed Governance And The Crisis Of Displacement”, Cornell University Press 93 (2013) https://d3p9z3cj392tgc.cloudfront.net/wp-content/uploads/2019/03/07114253/9780801477775.pdf accessed on 15July 2019. [7] James C Hathaway, “Food Deprivation: A Basis for Refugee Status”? University of Michigan Law School 81 SOC. RES., no. 2327-39(2014) https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2075&context=articles accessed on 16July 2019. [8] U.N. High Commission for Refugees, “Climate Change, Natural Disasters and Human Displacement”: A UNHCR Perspective, (prepared by Antonio Guterres), https://www.unhcr.org/4901e81a4.pdf accessed on dated 16 July 2019. [9] Renner Michael, “Environment a Growing Driver in Displacement of People Is Meat Sustainable? World watch Institute”, http://www.worldwatch.org/node/5888 Accessed on dated 16 July 2019. [10] United Nations Convention Relating to the Status of Refugees, Jul. 28, 1951, 189 U.N.T.S. 150 (adopted on July 28, 1951 by the U.N. Conf. of Plenipotentiaries on the Status of Refugees & Stateless Persons convened under U.N.G.A. Res. 429 (V) (Dec. 14, 1950), https://www.refworld.org/docid/3be01b964.html accessed on dated 17 July 2019. [11] United Nations Protocol Relating to Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267 (adopted by U.N.G.A. Res. 2198 (XXI) (Dec. 16, 1966) entered into force Oct. 4, 1967) http://hrlibrary.umn.edu/instree/v2prsr.htm accessed on dated 17 July 2019. [12] Bhanu Sridharan, “Not Doing Anything Is No Longer Acceptable: A Conversation With Alice Thomas” Climate Refugee Expert Pacific Standard (2018), https://psmag.com/environment/not-doing-anythingis-no-longer-acceptable-a-conversation-with-alicethomas-climate-refugee-expert (accessed on dated 17 July 2019. [13] Warsan Shire https://www.globalcitizen.org/en/content/no-oneputs-their-children-in-a-boat-unless-the-wa/. Accessed on dated 17 July 2019. [14] Nesrin Algan, “Transboundary Population Movements: Refugees”, Environment and Politics, 75 TURKISH Yearbook of International Relations 2 (1998) http://dergiler.ankara.edu.tr/dergiler/44/669/8522.pdf accessed on 17 July 2019. [15] Lester R.Brown, “Twenty-Two Dimensions Of The Population Problem”, 102 (1976) https://files.eric.ed.gov/fulltext/ED128282.pdf accessed on dated 17 July 2019. [16] Irene Khan, “The Unheard Truth: Poverty And Human Rights”, 15 (1st ed., 2009). [17] Anna Lindley, “Questioning drought displacement: environment, politics, and migration in Somalia”, 45 FMR 39 (2014 http://www.fmreview.org/crisis/lindley.html accessed on dated 18 July 2019 [18] AF (Kiribati) [2013] NZIPT 800413 at 39 (New Zealand). [19] Id. [20] Mohammed Matahir Ali v. Minister of Immigration, [1994] FCA 887 (Aus.). [21] Hans Gunter Brauch, “Facing Global Environmental Change”, Environmental, Human, Energy, Food, 303 (2009). [22] Jessica Rodger, “Defining the Parameters of the Non-Refoulement Principle”, LLM Research Paper in International Law (LAWS 509), Faculty of Law Victoria University of Wellington, 2001, available at: http://www.refugee.org.nz/JessicaR.htm accessed on dated 18 July 2019. [23] Macedonia using Refugees as Lever, BBC, (May 6, 1999) available at http://news.bbc.co.uk/2/hi/europe/336774.stm. Accessed on dated 18 July 2019. [24] Resettlement, UNHCR, available at http://www.unhcr.org/resettlement.html. accessed on dated 19 July 2019. [25] Nishimura Ekiu v. US, 142 US 651 (12 S.Ct. 336, 35 L.E.d. 1146)(U.S.). [26] Catherine Phuong, “Identifying States Responsibilities towards Refugees and Asylum Seekers” Esil Research Forum, International Law: Contemporary Problems, Geneva, 2005available at http://www.esilsedi.eu/sites/default/files/Phuong.PDF accessed on dated 19 July 2019 [27] Sale, Acting Commissioner, INS v Haitian Centers Council (1993) 113 S.Ct 2549 (U.S.). [28] GUY S Goodwin-Gill, “The Refugee In International Law”, 117 (2nd Ed., 1996) [29] E. Lauterpacht, “The Scope And Content Of The Principle of Non-Refoulement” Opinion, Cited In E. Feller, Refugee Protection In International Law: UNHCR’s Global Consultations On International Protection, 149 (2003). [30] Catherine Phuong, “Identifying States Responsibilities towards Refugees and Asylum Seekers”, University of Newcastle, UK available at http://www.esil-sedi.eu/sites/default/files/Phuong.PDF. accessed on dated 20 July 2019. [31] International Maritime Organization (IMO), International Convention for the Safety of Life at Sea, 1 November 1974, 1184 UNTS 3. https://www.ifrc.org/docs/idrl/I456EN.pdf accessed on dated 21st July 2019 https://institute.intolegalworld.com/certificate-in-international-law.aspx