Kavya Mathur & Varsha Raman
Climate change, a notable driver of displacement, has the potential to displace about 140 million people by 2050. Even though climate change continues to shatter lives and livelihoods across the globe, States and the international community in general are seemingly inattentive to its effects. This crisis demands action, as the majority of the states are ill-equipped to accommodate people displaced due to climate changes [hereinafter “Displaced Persons”].
With coronavirus also in the picture, there are some similar denials that accompany climate change; but sadly, there can be no vaccine for climate change. Contrary to the popular belief of the virus halting human mobility, more people are displaced and fleeing for their survival. In such a situation, there are serious concerns about decreasing access of displaced persons to seek asylum to safeguard their basic human rights. Therefore, a system that respects the fundamental human rights of those persons who are, or are likely to be displaced, whilst taking care of the well-being of the State’s own citizens is essential.
There is also a need to reimagine human mobility in the light of such unprecedented circumstances, starting with acknowledging that exclusion is expensive. An inclusive regime will help such people by upholding their human dignity in the face of this crisis, helping them to restart their lives. Accordingly, as fellow human beings we must recognise the need towards the safety of the displaced persons and ensure their inclusivity and recognition under international human rights and refugee laws.
Since international state and non-state actors argue that people displaced due to climatic changes or natural disasters cannot be legally recognized as “climate refugees”, they have been completely excluded from being accorded protection to their human rights. The authors have, through the course of this essay, tried to delve into the hardships faced by displaced persons, and attempts to provide definite policy suggestions to fill the gaps in the present legal system, for the recognition of such persons.
Present Legal Stance: Rights Accorded to the Refugees
The non-recognition accorded to the displaced persons, has, for years now, resulted in an absolute disregard of basic human rights by host countries. Although the Convention and Protocol relating to the Status of Refugees, 1951 (hereinafter “Convention”) provides for the protection of ‘recognised refugees’ by mandating non-penalization of their “illegal” stay or entry (subject to certain exceptions), the overall conditions that these refugees are being exposed to during these times are appalling. With consistent advancements in the field of international human rights, the principle of non-discrimination has been materialized for the application of the Convention upon the refugees. As mentioned in the Introductory Note of the Convention, refugees have also been granted the liberty of breaching immigration rules in the pursuit of an asylum. Despite being entitled to such rights, it is to be noted that the implementation of the same has been nonchalant by several states, thereby leading to a blatant disregard of their human rights.
Although various inter-governmental organizations have attempted to define and grant protection to the victims of displacement due to climate change, they have remained unsuccessful in introducing an all-inclusive legal definition for them. Due credit must be accorded to the Nansen initiative, launched in 2012 by the governments of Norway and Switzerland, which envisaged tackling the challenges presented by cross-border displacement due to natural disasters. It has gained acceptance worldwide as it aims to supervise and bring under its ambit, the concept of cross border displacement of persons. The only drawback of the Nansen initiative is the exclusion of refugees displaced due to the effects of climate change, such as inhabited land being submerged due to a rise in sea level.
The debate surrounding ‘climate refugees’ must be furthered by emphasizing the need to determine the extent to which the movement of the refugees can be associated with environmental deterioration. The recent United Nations’ Human Rights Committee’s judgment in the case of Ioane Teitiota symbolises a ray of hope for the refugees since it granted legality to asylum claims emerging due to climate change. The Committee, taking into consideration the grievances of Mr. Teitiota, ruled that no refugee displaced due to climate change shall be sent back. It propounded that a lack of protection accorded to these refugees point to a serious disregard of their human rights and triggers the non-refoulement obligations of the receiving states. Accordingly, it called for a ‘robust action’ by the international community to ensure that their right to a dignified life is not compromised because of climate change. This judgment, therefore, has opened a doorway for future claims, thereby guaranteeing protection to refugees, who stand threatened in lieu of climate change.
Two Invisible Crises – The Pandemic and the Displacement Due to Climate Change
The world is enduring one of the most complex public health emergencies, which if goes unchecked, might turn into a humanitarian crisis as well, affecting displaced people the most. This compounded global challenge that we are facing is so interrelated and demanding, that we need a fix to match its scale. It is unquestionable that this virus is non-discriminatory However, displaced persons have a higher than average risk of being affected, both physically and socio-economically. Almost eight months into the outbreak, the imprint is becoming discernable and this pandemic, accordingly, has the potential to revamp the regime regarding international settlement of displaced persons.
This compounding of events, i.e., climate change along with an intensified burden on public health systems, is visible around the world. For instance, in Kenya, the authorities strived to maintain social distancing as floods smothered the informal settlements of displaced persons. Accordingly, the preventive strategies adopted by nations have whiffed between care and control, with an underlining emphasis on care for their own citizens, and control of movement and interaction of displaced persons. Likewise, in India, the governmental assistance provided to migrant labourers does not include displaced persons, who are seen as illegal migrants. While the pandemic presents an unprecedented global threat, it does not absolve the states from their responsibility to protect displaced persons.
As per the principle of non-refoulement under international law, states are prohibited from sending back any person to an unsafe foreign territory by either rejecting them at the borders or not admitting them into their territory. The United Nations High Commissioner for Refugees [hereinafter “UNHCR”] in its publication dated March 16, 2020 has categorically clarified that under international law, states must continue to respect this principle and put in place adequate measures for health screening or testing of persons seeking international protection. Regardless of this clarification, states are using this virus as an opportunity to remove such displaced persons from their territory. For instance, in Italy, 100 migrants were illegally detained and thereby, prevented from entering the country.
Contrastingly, in cases where displaced people are kept back due to humanitarian grounds, they are often sent to detention centers. Having escaped a combination of climate change and geopolitical stressors, displaced persons have a heightened risk of facing a regime that is not supportive and inclusive. Additionally, these detention centers are in appalling conditions, and are swamped due to overcrowding. With resources being insufficient to sustain such large populations, the current state of detention centers are not nearly commensurable to deal with an outbreak. International law specifies that restrictions of a person’s liberty must be necessary and proportional. Thus, displaced persons should be released from such centers due to the impending danger of them becoming coronavirus hotspots.
Conclusion: Tackling the Conundrum of Recognition and Rights
We need to focus on a long-term strategy for climate adaptation, which should include pandemic preparedness. Displaced people are often left out of disaster and pandemic planning. Correspondingly, the states must ensure that accurate and relevant information, in widely known language(s), reach the marginalized groups. Further, with an economic shutdown during the pandemic, countries should invest heavily in expansive infrastructure, especially healthcare systems and weather-and-disease forecast systems, and. Moreover, people must not stigmatize displaced persons. This instigates them to hide their symptoms and/or discourages them to take appropriate treatment, putting everyone else’s life at risk. Correspondingly, states must ensure that they are personally well-equipped to deal with climate changes or potential disasters, by promoting sustainable management of resources. Furthermore, they must also attempt to eliminate the possibility of displacement of persons, by relocating them to a low-risk area after anticipating the occurrence of a disaster, in a timely manner.
With the pandemic in picture, the most endangering transgression of the existing protection system has been the closure of resettlement programs on a massive scale. Strikingly, in countries like Kenya and Bangladesh, the governments have put the camps and settlements under a complete lockdown to fight the virus. This lockdown has its own repercussions, as it not only restricts the necessary movement of displaced people, but also of the aid workers.
The authors are students at the National Law University, Jodhpur.
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