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In the past few decades, the United Nations and the whole international community at large has faced a new iteration of the existing issue of refugees and migrants, known as climate migrants. The issue of climate migrants and refugees is very different from conventional topics which are covered and governed under the Convention and Protocol Relating to the Status of Refugees and hence there is a need to formulate a new international instrument to deal with this issue while keeping in mind the paucity of time and the urgency of formulating and implementing the instrument to deal with climate refugees as Sir Nicholas Stern, who is the former Chief Economist of World Bank expects that by 2050, more than 200 million people would be forced to flee their homes.
To cardinally understand the situation of climate refugees, the first step is to distinguish climate migrants from climate refugees. The fundamental difference between the two is that migration does not compromise the ability or the right to choose, even if the choice is restrained to a certain extent, whereas the mobility aspect with climate refugees is entirely forced. Moreover, climate migration is mainly internal, and which does not always require a bilateral or a multilateral solution. This eliminates the long legalities and dependence which usually arises upon a foreign host country. The recognition of Climate Migrants in international law is certainly an issue, but it is not as pressing or urgent when compared to the threat which climate refugees face.
As of now, climate refugees are in a state of ambiguity and precarity in terms of their recognition in the international law. The 1951 Refugee Convention’s definition of “refugees” does not cover displacement due to climate change and the treaty was not drafted keeping in mind the issue of climate migrants. A lot of this lack of clarity exists because the five basis of persecution which have been covered under the Refugee Convention are race, religion, nationality, membership of a particular social group and political opinion; this definition does not mention forceful displacement induced because of climate change anywhere. Moreover, climate refugees cannot claim the status of refugee unless they have already been displaced from their country.
Climate Induced Displacement can take place due to 4 primary reasons. The first is sudden onset disasters. This type of disaster forces people out of their homes and countries without any prior prediction or warning. It can be either due to an earthquake or a tsunami and such refugees who are internally displaced have protection under principles 1,3 and 6(d) of the 1998 UN Guiding Principles of Internal Displacement. According to a Friends of the Earth forecast, there will be 1 Million climate refugees from Small Islands by 2050. This brings us to the second type of refugees which will be due to the submersion of a lot of small island countries. Coupled with sudden onset disasters, this in turn will cause double the threat. There will be an increase in sea water levels and in the frequency of the storms which will make the threat both immediate and long-term. For example, Cyclone Pam in Kiribati and Cyclone Winston in Fiji were caused primarily due to climate change, both the Island Nations previously not being prone to ferocious storms. The people that migrate to other countries will be left in a prima facie bind— they will neither be migrants nor be refugees. The third category is of refugees who reside disaster prone high-risk zones too hazardous for humans. This category includes people from places like Tsunami prone areas in Indonesia and earthquake affected zones in Peru. The last category of refugees arises from violence and unrest due to climate change and this category has the potential to significantly add to the numbers of climate refugees in the future. According to Stanford Professor James Fearon, armed conflicts in general are majorly influenced by shocks and changes to international relations and domestic politics. The rapidly changing climate and its repercussions are bound to have significant effects to both of the factors causing armed conflicts. However, it is tough to anticipate the brevity of these effects.
In order to tackle this issue, there is a need for all the stakeholders in this climate crisis to come together and work on a new international instrument like we have seen in the past when the General Agreement on Tarriffs and Trade (GATT) was formulated to promote multilateral trade and there is a need for cooperation as seen during the formulation of Bretton Woods System and Agreement. The new instrument should conform to the existing framework of the United Nations Framework Convention on Climate Change (UNFCCC) and Conference of the Parties so that United Nations High Commissioner of Refugees (UNHCR) is in cohorts with the new instrument that shall govern the climate refugees. To begin with, one of the main issues that should be dealt with is legally defining climate refugees. For that, the 1951 Refugees Convention defining "refugees" should have a mention in the new framework that will be created and the category of violence and unrest due to climate change should be considered as a ground for persecution. Due to Article 29 of the Vienna Convention on Law of Treaties which governs the 1951 Refugees Convention, it would be virtually impossible to edit the convention now and hence in order to include refugees displaced due to violence and unrest caused due to climate change, the States would have to adopt the practice of granting them with the status of refugee for it to become a part of international customary law until the new treaty comes into force.
This whole process of drafting and ratifying a treaty has taken up years if not decades in the past, and since several countries have divergent opinions about legal recognition of climate change and climate refugees, this treaty would be no exception. Therefore, there is a need for an interim solution and this need for an interim solution can be fulfilled using Free Movement Agreements (FMAs). Free Movement Agreements are regional agreements that ease the process of migration amongst two States. These agreements range from curbing visa requirements for entry into a country to more complex rights to reside and work and are extremely well-suited to address climate refugees as they grant access to territory and safety regardless of the reason of their displacement. As it has been argued by Ama Francis, FMAs also provide a regional response to a regional challenge and help construct a robust financial structure at an individual level increasing capacity to respond to adverse climate impacts, and are more easily amended than global multilateral agreements. Furthermore, FMAs can be tailored to meet regionally specific needs since environmental impacts vary across regions and it may also be more appropriate when compared to an international approach. Also, FMAs are also beneficial as they help facilitate relocation of migrants to countries that share comparable cultures and values through intra-regional movement which may reduce the adverse impacts of displacement which the migrants face when cross-border migration is the only feasible adaptation strategy. However, at the same time it is important to note that these may only work in continents like Europe and Africa where the countries have a union of their own and there is presence of high level cooperation and acceptance of thought and frameworks between countries.
Additionally, research and advocacy are needed to increase resilience and adaptability of the framework that overlook climate refugees. The rapidly increasing number of climate refugees parallel to the volume and readiness of receiving countries makes this an issue which can no longer be shoved aside. To reiterate, the issue of climate refugees is pressing as shown by the evidence and statistics stated above. Hence, it is imperative that this crisis is dealt with alacrity incorporating the recommendations stated above.
This article has been authored by Aryaman Kapoor and Prisha Mehta, first year students of OP Jindal Global University, Jindal Global Law School.