Open Access Research Article
Beyond Borders: Rethinking Legal Protection For Climate Migrants In India
Published Paper
Article Details
BEYOND BORDERS: RETHINKING LEGAL
PROTECTION FOR CLIMATE MIGRANTS IN INDIA
AUTHORED BY
- ANAGHA RAMDASS
ABSTRACT
The adverse impacts of climate change have
increasingly led to the displacement of persons, both within national borders
(climate migrants) and across international boundaries (climate refugees).
India, situated in the climate-vulnerable South Asian region, is poised to
witness significant influxes of climate refugees, necessitating a proactive and
holistic approach. The paper delves into the intricate legal landscape
surrounding climate migrants and refugees in India. It begins by delineating
the two distinct terminologies and exploring the current international legal
framework, which fails to grant climate refugees an inherent right to resettle
in another country. Turning the focus inward, the paper scrutinizes the
challenges posed by internal climate change induced displacement in India. The
recently introduced Climate Migrants (Protection and Rehabilitation) Bill,
2022, is critically evaluated, acknowledging its positive aspects while
identifying areas for improvement. Drawing inspiration from global experiences,
the paper examines the approaches taken by countries in addressing
climate-induced displacement. The paper then proposes a two-pronged strategy
for India: first, mainstreaming climate migration into the National Adaptation
Plan for Climate Change (NAPCC) by incorporating dedicated missions or
integrating it into existing missions; second, amending the Disaster Management
Act, 2005, to explicitly include climate change-related events within the definition
of "disaster".
Keywords: Climate Migrants, Climate
Refugees, Climate Migrants (Protection and Rehabilitation) Bill, National
Adaptation Plan for Climate Change (NAPCC), Forced Displacement, Disaster
Management Act
I.
Introduction
Climate
change is increasingly being recognized as a major driver of human
displacement, both within national borders (internal displacement) and across
international boundaries (cross-border displacement). While international soft law
instruments like the Cancun Adaptation Framework, Nansen Principles and the
Sendai Framework exist, much needs to be done in the domestic legal framework
for any tangible change to materialise. While there is increasing acceptance on
the growing nexus between climate change and human mobility, terms like
“climate refugees” and “climate migrants” entering the discourse is a
relatively recent phenomenon.[1]
Needless to say, Climate Change and related natural disasters threaten state
stability, social structures, and individual human rights,[2]
exposing the pre-existing vulnerabilities of the affected community,[3]
especially in developing countries like India.
The paper
commences by delineating the distinction between the terms "climate
migrants" and "climate refugees," thereby establishing a
foundation for understanding the nuances of climate-induced human mobility. It
briefly delves into the legal landscape of the international refugee law
framework, underscoring the need for comprehensive domestic policies. The paper
then shifts its focus inwards, scrutinizing the challenges posed by climate
migration within India and critically evaluating the recently introduced
Climate Migrants (Protection and Rehabilitation) Bill, 2022. Drawing
inspiration from global experiences, the paper examines the approaches taken by
various countries in addressing climate-induced displacement and highlights the
potential, as well as the limitations, of the non-refoulement principle in this regard. Subsequently, the paper
proposes a two-pronged strategy for India: mainstreaming climate migration into
the National Adaptation Plan for Climate Change (NAPCC) and amending the
Disaster Management Act, 2005 to explicitly account for climate migrants.
II.
understanding the two distinct terminologies - climate refugees and
climate migrants
At the outset, it is important to
distinguish between the terms “climate migrants” and “climate refugees” as used
in the paper. Climate migrants refers to individuals that have been internally displaced due to
climate-change hazards and does not involve crossing international borders.
Climate refugees, on the other hand, refers to persons that have crossed
borders to seek refuge in another state due to climate change and allied
concerns.
A. climate
refugees
The term “climate refugees”, despite
being discussed widely, has failed to secure an internationally agreed upon
definition.[4] While
the 1951 Refugee Convention does not take environmental factors into account,
calls for amending the Convention have been few and far.
Biermann and Boas, political
scientists and environmental policy experts use the phrase “climate refugee” as
opposed to its equivalents because it has strong moral overtones and lends
credibility and urgency to the situation.[5]
Majorly affecting the most vulnerable populations, climate refugees are still
not legally protected in any country.[6]
The current international legal
framework does not grant climate change refugees an inherent right to resettle
in another country, even in cases where they have no other viable option, such
as citizens of island nations. Thus, in the existing legal paradigm, the only
avenue for climate change migrants to permanently resettle in a foreign country
would be by aligning themselves with the categories prescribed within the
immigration laws of their desired destination country.[7]
Alternatively,
Climate refugees may explore a legal pathway through the principle of
non-refoulement. This principle prohibits a country from expelling or returning
("refouler") an individual to a situation where they would face
certain dangers, such as persecution, torture, or cruel, inhuman, or degrading
treatment or punishment. The 1951 Refugee Convention[8] enshrines a version of the non-refoulement
principle codified in Article 33, and it is also embedded within certain human
rights treaties or has been interpreted as applicable to them, arguably
attaining the status of Customary International Law.
However,
existing jurisprudence poses significant challenges for climate migrants
seeking to invoke the principle. Climate change is unlikely to be considered a
harm sufficiently dangerous to trigger the threshold for application of the
principle. Even in the event that climate migrants successfully establish
non-refoulement claims, the principle only safeguards them from expulsion; it
does not confer the right to permanent residency in the country to which they
have relocated.
B. climate
migrants
Internal displacement due to climate
change can occur gradually or suddenly, depending on the nature and severity of
the environmental stressors involved. In some cases, people may be forced to
relocate permanently, while in others, the displacement may be temporary or
cyclical. Regardless of the duration, climate migrants often face significant
socio-economic and psychological challenges, including loss of livelihood,
disruption of social networks, and limited access to basic services and
resources.
The Guiding Principles on Internal
Displacement of 1998[9],
introduced by the United Nations Economic and Social Council (ECOSOC), represent
the first international standards specifically tailored to address the plight
of Internally Displaced Persons. These principles draw upon relevant aspects of
international human rights law, humanitarian law, and refugee law, adapting
them to the unique circumstances of internal displacement. However, it is
crucial to note that these Guiding Principles were deliberately designed as a
non-binding legal instrument which can, at best, serve as soft law. In
practice, only a limited number of countries have incorporated these principles
into their national legislation or constitutional frameworks.
III.
India and climate-induced displacement
This
section examines India's unique challenges in contending with climate-induced
migration flows, both internal and cross-border. It delves into the country's
position as one of the largest refugee-receiving states in South Asia.
Simultaneously, it sheds light on the internal displacement crisis fuelled by
native socio-economic and topographic-centric factors.
A.
India and climate refugees
Centred in one of the most
environmentally fragile areas of South Asia, the Indian mainland has and will
continue to face increasing climate migration influx into its’ borders,[10]
especially from its’ neighbouring countries like Sri Lanka, Bangladesh, Myanmar
and Afghanistan. On an international policy level, India is not a signatory to
the 1951 Refugee Convention and the 1967 Optional Protocol, thus circumventing
it from the legal scrutiny of an internationally binding refugee protection law
framework.
Arguing from a constitutional
standpoint, with the addition of Article 51-A and Article 48A, post the
ratification of the 1972 Stockholm Declaration, India has signalled its intent
to protect and improve natural resources and biodiversity.[11]
Coupled with the Right to life under Article 21, extrapolating legal
recognition to climate refugees in India can be quite the compelling argument.
B. india and
climate migrants
India, being a vast country with diverse geographical features have the
risk of facing acute differential impacts induced due to climate change like
desertification, coastal floods, land degradation and the like.[12] Countries like India,
Bangladesh, and China along with numerous countries from the Southeast Asian
region will also be impacted by the rising sea levels.
Internally, the nation grieves the
loss of biodiversity in the Sunderbans delta threatening to displace close to 5
million inhabitants due to sea level rise. The flooding of Brahmaputra in
regions of Assam and Bihar further exacerbate climate change induced internal
displacement. Moreover, in the hilly districts of Uttarakhand, erratic
rainfall patterns and a declining water table have compelled people to abandon
their homes and agricultural lands, forcing them to migrate to the plains.
Similarly, in Saharsa district of northern Bihar, a relocated community
continues to grapple with the relentless onslaught of floods. These instances
underscore the reality that inter-state and intra-state (rural-urban) migration
due to droughts, floods, and other extreme climatic events has been an ongoing
phenomenon in the country.
IV.
drawing from foreign jurisdictions
Turning to foreign jurisdictions to
examine their stance on climate refugees and climate migrants, New Zealand is
of particular importance. In 2016, Ioane
Teitiota a man hailing from the Kiribati had filed a claim against the New
Zealand government for denying “climate refugee” status and asylum claims due
to land difficulties and lack of access to safe drinking water in the Pacific
Island Nation. While the United Nations Human Rights Committee (UNHRC) ruled in
favour of the government, it made some key legal observations. The Tribunal
noted that the right to life must be interpreted broadly,[13] which can potentially pave way for climate refugee
jurisprudence vis-à-vis Articles 6 and 7 of the International Covenant on Civil
and Political Rights (ICCPR).[14]
In 2017, the New Zealand Government introduced a one-of-a-kind
humanitarian visa, also called a “climate refugee visa”. However, it was discontinued
owing to objections from the Pacific Island Countries centring around
preservation of indigenous cultures. The United States government, on the other
hand, under the Biden Administration, has demonstrated a progressive stance on
addressing the nexus between climate change and migration flows. In 2021, the
Administration officially correlated climate change as a driving force behind
population displacements, marking a significant policy shift. Additionally,
they expanded the scope of “Temporary Protected Status” (TPS), a provision that
offers temporary refuge from deportation for refugees fleeing war, natural
disasters, or other crises in their home countries. While TPS currently
benefits refugees from specific nations like El Salvador and Haiti, experts
argue that extending this status to encompass climate refugees would be a
positive step.
In the Latin American sphere, we can
see positive developments in Brazil with the introduction of their ad-hoc
humanitarian visa scheme. The United Nations High Commissioner for Refugees
(UNHCR) has lauded the initiative of the Brazilian government to provide such
visas in favour of Haitians
after the 2010 earthquake and an extending it to the Syrians in the wake of the
civil war.[15]
Many Pacific Island nations are
taking proactive measures to address the challenge of climate change-induced
displacement. For instance, Fiji has adopted National Relocation Guidelines
that offer a skeletal framework for both the government as well as the
communities affected by gradual and sudden environmental hazards. Similarly,
the country of Vanuatu through its’ Ministry of Climate Change Adaptation has
formulated a National Policy on Climate Change and Disaster-Induced
Displacement, which aims to ensure that population movements occur with
dignity, safeguards, and human rights protections in place.
The potential of bilateral agreements
remains largely unexplored. This can be seen by the first of its kind agreement
between Australia and Tuvalu to address climate induced migration for low-lying
island nations.[16]
India can learn from the experiences
of foreign jurisdictions in formulating a legal framework for climate refugees.
While drawing from positive aspects of foreign frameworks, India should also
address their limitations. The framework should provide not only temporary
refuge but also long-term solutions, ensuring the rights and well-being of
those displaced by climate change's adverse effects. By learning from global
experiences, India can develop a comprehensive and progressive legal framework
tailored to its specific challenges and needs.
V.
Climate Migrants (Protection and Rehabilitation) Bill, 2022
According to data of the Internal
Displacement Monitoring Centre, in 2020, 3,856,000 people were displaced by
environmental disasters, 989 times more than the 3,900 persons displaced by
conflicts.[17] Noting
the alarming numbers of climate-induced migration in India, Shri Pradyut
Bordoloi, an Assam MP introduced the Climate Migrants (Protection and
Rehabilitation) Bill[18](“Bill”) in December 2022 as a private
members’ bill. This move, perhaps the first of its kind, is heralded as a
start, providing the much needed impetus to, at the very least, initiate
academic discourse and public discussions, and in the long-term possibly
inspiring a central legislation.
Setting aside the dismal rates of a
successful legal culmination of private member’s mills in either houses of the
Parliament, there is much potential and scope in the bill, which if augmented
by necessary rules, can prove to be a game-changer in the field of climate
migrants in India.
A. analyzing
the merits
The proposed Bill envisages a
holistic framework, taking into account aspects like prevention, preparedness,
relief, rehabilitation and reintegration of climate migrants. It provides for
monitoring and assessing of climate migration risk, prevention and mitigation,
relief and compensation for climate migrants and their resettlement,
rehabilitation and re-integration. This overarching design reflects an attempt
to institutionalize a cyclical and continual process for addressing climate
migration's root causes, immediate impacts, and long-term rehabilitative needs
within a unitary policy framework. It provides for a dedicated National Climate
Change Management Authority[19]
to oversee the functioning of the Act and earmarks a stipulated sum from the
Consolidated Fund of India for Climate Migration Fund.[20]
Arguably the most important operative section is the provision which mandates
the Central Government to formulate, a National Policy for addressing
climate-induced migration.[21]
B.
analyzing the demerits
The protection is extended only to
“climate migrants” defined in Section 2(c) of the Bill[22]
which does not include cross-border migration or “climate refugees” and limits
it to Internally Displaced Persons in the classical sense.[23]
At the same time, the definition of "climate migrants" is inclusive
of even voluntary migration due to worsened living conditions which could make
identification and limiting the scope of the Bill difficult.
A glaring shortcoming of the proposed
Bill is its failure to integrate with and build upon existing disaster
management frameworks such as the Disaster Management Act, 2005. Leveraging
these established legal and institutional mechanisms could have significantly
strengthened the implementation and efficacy of the new law. Additionally, the
Bill neglects to adequately address several critical aspects including the
nitty-gritties of the compensation processes, grievance redressal mechanisms
for affected populations, and tailored solutions for climate migrants displaced
to populated megacities. These oversights represent significant gaps that could
hinder the law's ability to comprehensively safeguard the rights and
effectively rehabilitate climate migrants against the vagaries of climate
change induced displacement.
While global climate efforts rightly
prioritize long-term emissions reduction and sustainable energy transitions,
overlooking the ongoing realities of forced climate migration is a luxury the
world can ill afford. Instead of a siloed approach, India ought to adopt an
integrated vision harmonizing mitigation efforts with frameworks safeguarding
climate migrants. While academics laud initiatives like the portability of
ration cards and the Mahatma Gandhi National Rural Employment Guarantee Act
(MGNREGA), India continues to face the dual threat of climate change and rapid
urbanization.
As nations grapple with the mounting
challenges posed by climate change, it becomes imperative to develop
comprehensive legal and policy frameworks to address its multifaceted impacts,
including climate-induced displacement. India, a country with a vast population
and diverse geographical terrain, is particularly vulnerable to the effects of
climate change, making it crucial to explore avenues within existing legal
structures. Two potential pathways that merit consideration are: (1) integrating
climate migration into the broader ambit of the National Adaptation Plan for
Climate Change, and (2) amending the Disaster Management Act, 2005 to
specifically account for climate refugees.
A. mainstreaming
climate migration into the national adaptation plan for climate change
The National Adaptation Plan for
Climate Change (“NAPCC”) is a
strategic symbiosis of 8 missions viz National
Water Mission, National Solar Mission and the like. The NAPCC, as it stands,
does not explicitly cover the issue of climate migration and refugees within
its national missions. However, given the growing recognition of climate change
as a driver of displacement and migration, there could be an opportunity to
integrate a comprehensive framework for protecting climate migrants and
refugees within the broader ambit of the NAPCC.
A new mission covering aspects like
early warning and risk mapping systems to identify potential climate migration
hotspots, measures for protected migration corridors and planned relocation of
communities from high-risk zones, legal protections, documentation, access to
basic rights for climate migrants, rehabilitation, housing, employment,
education for displaced climate migrants, Building capacities of urban centers
to handle climate-induced migration influxes, International cooperation on
cross-border climate migration/refugee issues and Dedicated financial
mechanisms to fund is indeed a step in the right direction.
Even if the Bill does not see itself
to legal fruition, incorporating elements of the functioning of the National
Climate Change Authority from the Bill into the NAPCC either by addition of a
new mission or by incorporating the aforementioned aspects into the mandate of
an existing mission viz the National
Mission on Sustainable Habitat can prove to be effective in the long run.
B.
amending the disaster management
act, 2005
The
Disaster Management Act, 2005[24]
provides a comprehensive statutory framework for addressing disasters in India.
However, to effectively incorporate provisions for climate refugees, amendments
to the Act are necessary. Firstly, introducing a clear definition of
"climate refugees" or "persons displaced due to climate
change-related events" would explicitly recognize this category of
displaced persons, aligning with international norms and principles.
Secondly,
expanding the scope of the Act's definition of "disaster" under
Section 2(d)[25] can
prove to be pivotal. While the current definition includes the phrase
"...or degradation of, environment," it lacks specificity regarding
climate change-related events that lead to displacement, such as sea-level
rise, desertification, and extreme weather events. By explicitly including
these events within the definition, climate migrants would fall within the
purview of the Act.
Notably,
the Act's provisions for National Plans,[26]
State Plans,[27] and
District Plans[28]
primarily revolve around disaster mitigation, management, and recovery.
Consequently, an inclusive definition of "disaster" that accommodates
climate hazards would be a significant step towards addressing the issue of
climate refugees. This would ensure that climate change-induced displacement is
adequately addressed within the existing framework of disaster management plans
at various levels in the country.
VII.
conclusion
While majority of
the literature and discourse is on establishing a climate refugee status, it
provides only a partial approach to address the complexity of human mobility
due to climate change, which includes internal displacement as well. At the
same time, while amending the 1951
Refugee Convention and the 1967 Optional Protocol to account for environment
factors may seem less feasible, one can, for instance, explore the avenue of
providing guidelines for domestic law frameworks for climate migrants taking
into account both hard and soft law in humanitarian, human rights and refugee
law, instruments on internal displacement, disaster management, legal migration
and others.[29]
While migration is classically an
adaptation strategy for climate change, it is crucial to recognize that this
relationship is bidirectional and nuanced.[30]
Climate extremes at the destination regions can conversely undermine the
adaptive capacity and well-being of these migrants. This phenomenon highlights
the intricate interplay between population movements and climate change,
wherein they exist as mutually reinforcing processes. Displaced populations
seeking refuge may encounter new climate risks and vulnerabilities at their
resettlement locations, thereby exacerbating their precarity. Acknowledging
that there is no one-size-fits-all approach, India, by adopting equitable and
sustainable solutions can minimize the effects of climate change so as to
safeguard the rights of its citizens.
[1] Francois Gemenne et al, Forced Displacement related to the impacts
of Climate Change and Disasters, (Jun.2021), https://www.unhcr.org/people-forced-to-flee-book/wp-content/uploads/sites/137/2021/10/Franc?ois-Gemenne-et-al_Forced-displacement-related-to-the-impacts-of-climate-change-and-disasters.pdf
[2] International Law Commission,
Draft Articles on the Protection of Persons in the Event of Disasters, with
Commentaries, 2016, ILC Commentary to Article 5 at ¶ 8,
www.refworld.org/docid/5f64dc3c4.html
[3] UN High Commissioner for Refugees
(UNHCR), Legal considerations regarding
claims for international protection made in the context of the adverse effects
of climate change and disasters, (Oct.1, 2020)
https://www.refworld.org/policy/legalguidance/unhcr/2020/en/123356
[4] IPCC (2013), Climate Change 2013:
The Physical Science Basis. Contribution of Working Group I to the Fifth
Assessment Report of the Intergovernmental Panel on Climate Change, Stocker
T.F., D. Qin, G.-K. Plattner, M. Tignor, S.K. Allen, J. Boschung, A. Nauels, Y.
Xia, V. Bex and P.M. Midgley, Cambridge University Press.
[5] Frank B, Ingrid B.,
Preparing for a Warmer World: Towards a Global Governance System to Protect
Climate Refugees, Global
Environmental Politics 10,67 (2010).
[6] Gauri S Rane, Riddhi Jangam, India’s climate refugees and legal
implications, International Journal
of Law, 8, 118-122 (2022).
[7] Rafael Leal-Arcas, Climate Migrants: Legal Options, Procedia- Social and Behavioural Sciences,37,
86-96 (2012).
[9] Report of the Representative of the
Secretary-General, Mr. Francis M. Deng, submitted pursuant to Commission
resolution 1997/39, E/CN.4/1998/53/Add.2 (Feb.11,1998).
[11] Sincy Wilson, Recognition of Climate Refugees: What should be India’s stand?,
Refugee Law Initiative, (Mar.18,2021),
https://rli.blogs.sas.ac.uk/2021/03/18/recognition-of-climate-refugees-what-should-be-indias-stand,
2022
[12] Shreya Singh, Climate Migration and Displacement: Challenges and Responses,
Indian Council of World Affairs, (Feb.21, 2024),
https://www.icwa.in/show_content.php?lang=1&level=1&ls_id=10542&lid=6710
[13] Ioane Teitiota v. New Zealand, CCPR/C/127/D/2728/2016, UN Human Rights
Committee (HRC), (Jan. 2, 2020),
https://www.refworld.org/jurisprudence/caselaw/hrc/2020/en/123128.
[14] International Covenant on Civil
and Political Rights, Mar. 23, 1976, 189 U.N.T.S 137.
[15] Humanitarian visas: building on
Brazil’s experience, Forced Migration Review,
https://www.fmreview.org/jubilut-andrade-madureira/
[18] The Climate Migrants (Protection
and Rehabilitation) Bill,2022, Bill No. 160 of 2022 (July 7,2022).
[23] Id. at Preamble.
[24] The Disaster Management Act, 2005.
[27] Id.§23.
[29] Dina Ionesco, Head of MECC Division at UNIOM,
(Jun.6,2019),
https://www.un.org/sustainabledevelopment/blog/2019/06/lets-talk-about-climate-migrants-not-climate-refugees/
[30] Hari, Vittal et
al., Climate hazards are threatening
vulnerable migrants in Indian megacities, Nature Climate Change,11, 636 – 638
(2021).
Article Information
Beyond Borders: Rethinking Legal Protection For Climate Migrants In India
Authors: ANAGHA RAMDASS
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/19
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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