By — Sumedha Sahoo

Abstract:

As the onslaught of climate change on the world intensifies day by day, millions of people are being displaced from their homes. This paper examines how ‘climate refugees’, people who have been displaced due to the destructive effects of climate change, are treated. It primarily focuses on the lack of legal structure or the existing legal vacuum surrounding climate refugees by focusing on the shortcomings of the 1951 Refugee Convention and the UNHCR guidelines. This paper also argues upon this lacuna with the use of landmark legal precedents, explores the various impediments faced by climate refugees, and provides relevant and necessary reform that is possible in the current day and age.

Introduction:

Statistics, numbers, and data reflect a clear rising pattern in the ongoing global refugee crisis. Research done by the United Nations shows millions of people who have been displaced from their homes and have had to seek refuge in foreign lands due to war, persecution, violation of human rights, etc. The UNHCR and the 1951 Refugee Convention are the cornerstones that deal with this refugee crisis and determine their rights and their protection. Article 1 of the 1951 Refugee Convention lists several factors upon which a person is defined to be a refugee. A refugee is someone who has a fear of persecution, and due to such fear of persecution, they are unable to avail the protection of their country or are unable to return to their residence. Now, this ‘persecution’ is not a broad general term; the 1951 Refugee Convention specifies the reasons which must motivate a force to qualify as persecution. Some of these factors are race, religion, nationality, and political opinions. What remains left out, despite being a growingly prominent basis to demand refuge, is the climate crisis; the reason is not specified in the article. This begs the question of the state of climate refugees who have been forced to leave their homes and lives due to detrimental climate conditions like floods, rising sea levels, desertification, etc. As per the definition of a refugee according to UNHCR, climate refugees have also been displaced due to aggravating circumstances or persecution in their country or at their residence; however, this is not due to their race or religion but due to a different form of persecution, which is the persecution by the climate itself.

Legal Vacuum and Gaps in the Structural Framework:

As a matter of common knowledge, no person on this planet wants to or becomes a refugee due to their own will. People are put under unforgiving, excruciating circumstances through no fault of their own, which puts them into these vulnerable predicaments. In this case, where a refugee is forced to flee from the very place he calls home, he ought to be safeguarded, and his basic human rights ought not to be violated any further. Under the 1951 Convention, refugees are given several essential rights under multiple articles of the document. These rights include the right not to be expelled, not to be discriminated against, the right to housing, education, and several other fundamental rights which are intrinsic to each of these refugees. However, as pointed out earlier, while a step in the right direction, the Refugee Convention of 1951 categorically leaves out climate refugees, people who have escaped desperate and dangerous situations and are vulnerable to being persecuted by nature itself. This should ideally be more than enough reason for them to be considered as refugees and be given the same rights and safeguards as any other refugee. However, climate refugees remain in a precarious situation that can be best described as being stuck in a legal limbo. A similar issue was raised in the landmark case of Leone Telotia v. New Zealand. In this case, a person from Kiribati was seeking asylum in New Zealand as he fled his home due to extremely rapidly rising sea levels. He contended that the rejection of his asylum plea is a clear-cut violation of his rights and that New Zealand has violated his right to life. Right to life is a heavy term; it is a right intrinsic to every person in this world, which is violated every day in some form or the other. Courts in New Zealand, as well as the UN Human Rights Committee, while acknowledging the predicament this man was in, upheld that the decision to reject his asylum plea was indeed not a denial of justice. In a world where climate change is rising intensively and causing insurmountable damage, what climate refugees like Leone Telotia need is not acknowledgement but rather immediate and substantial action.

When is a ‘Refugee’ actually a ‘Refugee’?

What is projected through the conditions of persecution under the 1951Refugee Convention, as well as the outcome of cases like Ioane Teitiota v. New Zealand, is that there is a divide in defining who is classified as a refugee and can avail the rights provided. The deeply concerning part is the basis of this discrimination, where it is not the vulnerability of a person or the threat of persecution that makes them a refugee, but how that persecution comes to be that ends up becoming the defining factor. As all things go in the world, if people do not fit these traditional and potentially antiquated predefined notions, their predicaments or the threats to their life become meaningless. What should in reality be the point of focus is sidelined due to inconsequential reasons, which should not ideally hold any value. The entire foundation of the UNHCR and the 1951 Refugee Convention lies in the principle of non-refoulement. Non-refoulement is a principle that explicitly prohibits the return of a person to a country where they face the threat of irreparable harm. Therefore, the legal vacuum surrounding the refusal of climate refuge falls under the violation of this very principle. The path forward should take into account the very meaning of non-refoulement and use it to extend the ambit of refugee rights towards climate refugees as well.

Conclusion:

What is most important during challenging times is accepting gaps in the structural frameworks of laws and mending them. Climate change is no longer a problem to be looked over or to be sidelined; it is a growing and expanding global crisis. Affirmative steps in the direction of acknowledging climate refugees as refugees with rights and safeguards should be one of the foremost steps in addressing this issue. Several people like Ioane Teitiota have been denied asylum, justice, and their right to live. Their number is only likely to grow as issues like global warming, rising sea levels, and melting glaciers are rapidly intensifying. What is needed at a time like this is the progressive development of law in the right direction to fill this lacuna. Climate refugees are vulnerable people who should be guaranteed their right to live and should be treated on equal footing as any other refugee. They are people who deserve to have the right to live and the right to a definitive legal status.

About the Author:

Sumedha is currently a student at OP Jindal Global University in her third year of law school. With a strong interest in social sciences, she is keen to explore topics of intersections of climate and society. She is looking forward to explore and enhance her writing and knowledge on the socio-legal field.

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