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Climate Refugees Acknowledging the Existence of an Imminent Threat

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 NLUJ Law Review
Swapnil Tripathi, Climate Refugees: Acknowledging the Existence of an Imminent Threat, 4(1) NLUJ
Law Review 21 (2017)

CLIMATE REFUGEES: ACKNOWLEDGING THE EXISTENCE OF AN

IMMINENT THREAT

SWAPNIL TRIPATHI ∗

ABSTRACT

A former Secretary General of the UN General Assembly stated in a press

conference that the world is expected to have over 50 million refugees by 2020.
Issues relating to refugees have existed since the conclusion of the World War-
II, however its nature has changed. Today, displacement is not just caused by
threat of persecution by home State, but also by extensive climate change, a
ground which is not recognized for the grant of refugee status under the
Refugee Convention. States cite the Convention as a justification for refusing
entry to these individuals. However, the winds of change have given rise to the
concept of environmental refugees which presents an emerging change in
jurisprudence surrounding the subjects, thereby demanding the inclusion of
people displaced by climate change, under the definition of refugee. The present
article delves into this new phenomena and attempts to find an answer to this
demand raised in light of the recent events in the world, while also proposing
remedies for a proper mechanism.

∗ The author is a fourth year Constitutional Law (Hons.) student at National Law University, Jodhpur and can
be contacted at swapnil[dot]tripathi221[attherate]gmail[dot]com.
Spring, 2017] Climate Refugees: Acknowledging Imminent Threat 22

TABLE OF CONTENTS

I.INTRODUCTION ...........................................................................................................23

II. REFUGEE UNDER INTERNATIONAL LAW: REVISITING HISTORY AND

UNDERSTANDING THE PRESENT ...................................................................................24

III. THE EMERGENCE OF ENVIRONMENTAL REFUGEES ..............................................25

IV. STATE RECOGNITION OF ENVIRONMENTAL REFUGEES: STATE PRACTICE,

SOVEREIGNTY AND HUMAN RIGHTS .............................................................................27
A. The Floodgate Argument ........................................................................................... 28
B.The Self-Defence Argument ....................................................................................... 29
C.The Sovereignty Argument .......................................................................................... 29
A.The Non-Refoulement Argument .............................................................................. 30
B.The Human Rights Argument..................................................................................... 30
C.The Recognition Argument ......................................................................................... 31

V.THE CURE TO 50 MILLION ENVIRONMENTAL REFUGEES: RECOMMENDATIONS AND

SUGGESTIONS ................................................................................................................. 31
A.Setting up Similar Initiatives as Nansen .................................................................... 32
B.Reorienting the Definition of Refugee ...................................................................... 32
C.Resolving the Dichotomy Between Natural and Man-Made Induced Natural
Disasters ............................................................................................................................. 33
D.Forming Solution Alliances ......................................................................................... 33
23 NLUJ Law Review [Vol. 4.1

I.INTRODUCTION

“The world will have over 50 million refugees by the year 2020.”

-Ban Ki Moon (Former Secretary General, United Nations)1

In common parlance, one would use the term “refugee” to mean a person who has fled
his home country due to a threat to his life, but the term “environmental refugee” appears to be
alien to the general population. The reason for the same is the novel nature of the term. This
term has been held to mean exodus from the home country due to natural disasters.2

Internationally, refugees are granted certain protections under the Convention

Relating to the Status of Refugees, 1951 [“CRSR”]3 and the Protocol Relating to Status of
Refugees [“PRSR”].4 Article 1(A)(2) of these conventions provide that a person is a refugee
if he/she is fleeing persecution from their home country on grounds of race, nationality,
religion etc. and only the fulfilment of these grounds entitle a person to attain refugee status,
thereby availing the privileges that come with it. However, the CRSR and PRSR, being
conventions that were drafted around six decades ago, do not take into account persons who
flee their country on grounds of natural calamities, as the drafters did not envision that
natural disasters could also cause a mass-displacement of individuals. As a result,
environmental refugees were excluded from the purview of these conventions. The wrath of
such exclusion has primarily been faced in the Eastern African region which, due to its
deplorable natural condition, gives rise to the maximum environmental refugees in the world.
The lack of an updated definition not only denies them the protection offered to refugees

1 UN Secretary General, In Safety and Dignity: Addressing Large Movements of Refugees and Migrants: Rep. Of the Secretary-
General, U.N. Doc. A/70/59 (Apr. 21, 2016).
2 U.N. High Commission for Refugees, Climate Change, Natural Disasters and Human Displacement: a UNHCR

Perspective, (prepared by Antonio Guterres), available at http://www.unhcr.org/4901e81a4.pdf.

3 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),entered into force Apr. 22, 1954)[hereinafter Refugee
Convention].
4 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) [hereinafter Refugee Protocol].
Spring, 2017] Climate Refugees: Acknowledging Imminent Threat 24

under the conventions but also makes it difficult for them to return to their home country
after they leave it.

The author, through this paper, attempts to build a case for the environmental
refugees and puts forth arguments for their inclusion in the definition of “refugees” under the
Conventions, with a special focus on the condition in eastern Africa. Part II of the paper
discusses the history of refugees under international law. Part III sheds light on the
emergence of the concept of environmental refugees. Part IV puts forth the arguments for
and against the inclusion of the environmental refugees in the conventions. Part V concludes
the paper with a discussion on the eastern African situation and incorporating the requisite
suggestions.

II. REFUGEE UNDER INTERNATIONAL LAW: REVISITING HISTORY AND

UNDERSTANDING THE PRESENT

A refugee in the most primitive form was referred to as someone who flees due to
fear of persecution or is expelled from his country and seeks asylum in a different country.5
The history of refugees goes back to the medieval era wherein the Church performed the
function of granting protection to individuals who had been persecuted in their home
countries. Then, in the post medieval and modern times, these individuals were termed as
refugees by the League of Nations High Commission for Refugees in 1921.6 Later, the
regulating body for refugees i.e. the United Nations High Commissioner for Refugees
[“UNHCR”] was established by the General Assembly, which worked in collaboration with
countries to formulate and draft the CRSR and the PRSR.

The two conventions defined a “refugee” as a person who flees persecution from his
home country on grounds of race, religion, nationality etc.7 The convention when drafted was
primarily directed towards catering to the European refugees facing the wrath of the second
world war and was hence short-sighted. Its main objective was to provide protection to these

5 BLACK’S LAW DICTIONARY 1306 (Bryan A. Garner, 8th ed., 2004).

6 James E. Hassell, Russian Refugees in France and the United States, 81 American Philosophical Society 96 (1991).
7 Refugee Convention, supra note 3, at Art. 1.
25 NLUJ Law Review [Vol. 4.1

migrants and to ensure the adherence to their human rights as required by the Universal
Declaration of Human Rights [“UDHR”].8 It placed an obligation on every State to admit
persons who fulfil a criterion under the convention as a refugee in their territory and fulfil
their basic human rights.

The convention was successful in achieving its purpose for a decade or so but, could
not keep up with the dynamism persistent in the international scenario. The major area
wherein this lack of dynamism in the conventions was observed was in its criteria of
persecution. When the conventions were drafted the meaning of persecution was restricted to
treatment that was violent, cruel on grounds of religion and race,9 as such kind of treatment
was common during the world wars and was the primary reason why people fled their
countries. However, with the passage of time the international scenario saw emergence of
other grounds for the fleeing of citizens. One such ground was change in natural
environment i.e. climate change, droughts, famines etc.10 Due to the restrictive nature of the
definition of the refugees, the people fleeing countries due to these reasons were not termed
as refugees per se and were not granted any kind of protection.11 Lack of recognition on part
of the States led to the emergence of the concept of environmental refugees and the demand
for their recognition within the conventions.12

III. THE EMERGENCE OF ENVIRONMENTAL REFUGEES

Even though there are numerous Conventions on refugees, none of them grant
protection to people fleeing their home State due to environmental disasters. However,
multiple jurists came up with the demand of expanding the meaning of the term persecution
on grounds that the same was outdated and needed modification,13 as the reasons for

8 Universal Declarations of Human Rights, G.A. Res. 217A, U.N. Doc. A/810 (Dec. 12, 1948).
9 Briefing Paper: Refugees and the Third World, (Overseas Development Institute: London 1983) available at
https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/6678.pdf.
10 ALEXANDER BETTS, SURVIVAL MIGRATION: FAILED GOVERNANCE AND THE CRISIS OF DISPLACEMENT, 93

(2013).
11 James C Hathaway, Food Deprivation: A Basis For Refugee Status?, 81 SOC. RES., no. 2327-39(2014).
12 “International Law on Refugees — Contemporary Challenges” — Seminar at the Madras Bar Association,

(1996) 2 LW (JS) 57 (Aug. 3, 1996) [hereinafter Seminar on Refugees].

13 RV Anuradha, On A Displaced Person, 6 STUD. ADV. 52 (1994) [hereinafter Displaced Person].
Spring, 2017] Climate Refugees: Acknowledging Imminent Threat 26

displacement today are more complex and permanent14 as compared to those envisaged under
the Convention.15 They contended that a person, who has no water from drought, has no
food due to flooding, is left with no choice but to flee.16 Hence, grounds of natural disasters
like famine and drought were suggested to be included in the definition of refugee,17
following a rights oriented approach,18 i.e. the rights under ICCPR, CESCR.19

A term identifying these people was coined by Prof. Lester Brown,20 who termed
them as environmental refugees, signifying people that are forced to leave their home due to
changes in the environment around them, compromising their well-being and livelihood. The
presence of these refugees became so widespread that as per the Internal Displacement
Monitoring Centre [“IDMC”], one out of two displaced persons was so by virtue of a
disaster, and an average of 22.5 million had been displaced in the world due to the same.21
Despite such daunting figures, the issue of environmental refugees did not receive any
attention from the States.22 However it did receive recognition from the UNHCR.23

With the passage of time not just the UNHCR, but even the European Commission
[“EC”], has agreed on the impact of climate change on human migration and termed it as a
“crisis in the making”,24 thereby calling for an academic inquiry on the same.25 Today, such a

14 Nesrin Algan, Transboundary Population Movements: Refugees, Environment and Politics, 75 TURKISH YEARBOOK OF
INTERNATIONAL RELATIONS 2 (1998).
15 Adrienne Millbank, The Problem with the 1951 Refugee Convention, (Parliament of Australia: 2000-01) available at

http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp00
01/01RP05.
16 GARY GARDNER, TOM PRUGH, STATE OF THE WORLD 2015: CONFRONTING HIDDEN THREATS TO

SUSTAINABILITY, 118 (The World Watch Institute: 2015).

17 Seminar on Refugees, supra note 12.
18 Displaced Person, supra note 13.
19 International Covenant on Economic, Social, and Cultural Rights, GA Res. 2200A (XXI), Dec. 16, , 999

U.N.T.S. 171 at art. 11.

20 LESTER R.BROWN, TWENTY-TWO DIMENSIONS OF THE POPULATION PROBLEM, 102 (1976).
21 U.N.H.C.R., Climate Change and Disasters, (Dec. 14, 2009) available at http://www.unhcr.org/climate-change-

and-disasters.html [hereinafter Climate Change UNHCR].

22 Stefan Lovgren, Climate Change Creating Millions of "Eco Refugees," UN Warns, NAT. GEOG. NEWS (Nov. 18,

2005) available at http://news.nationalgeographic.com/news/2005/11/1118_051118_disaster_refugee_2.html.

23 United Nations High Commissioner for Refugees (UNHCR), Statement by Sadako Ogata, United Nations High
Commissioner for Refugees, at the United Nations Conference on Environment and Development (UNCED), Rio de Janeiro 2
(June 10, 1992).
24 James Hollifield, Idean Salehyan, Environmental Refugees, WILSON CENTRE (Dec. 21, 2015) 4available at

https://www.wilsoncenter.org/article/environmental-refugees#sthash.eN1Wv3lS.dpuf.
27 NLUJ Law Review [Vol. 4.1

broad definition stands accepted by Convention Governing the Specific Aspects of Refugee
Problems in Africa26 and the Cartagena Declaration.27 However, such recognition carries an
ambiguity with respect to the degree of climate change and in determining the required effect
of climate or natural disaster to categorize one as an environmental refugee, otherwise every
person fleeing their country would take environmental disaster or threat as an alibi.

This problem has been answered with a four step test laid down by Professor Irene
Khan, that states a person is qualified as an environmental refugee if he (or she) by (i)
voluntary movement, (ii) crosses international boundary, (iii) due to a rapid trigger, (iv) which
is linked to climate change.28 Also, it is mandated that such migration should necessarily have
environmental reason as the main factor for the flight,29 any sort of politicisation and
corruption was held not to be environmentally induced30 and was not protected under
migration management regimes.31Following the same, the refugees who migrated from Liberia
during the civil war were not termed as environmental refugees due to lack of a direct
connection between the war and deforestation (an outcome of climate change).32

IV. STATE RECOGNITION OF ENVIRONMENTAL REFUGEES: STATE PRACTICE,

SOVEREIGNTY AND HUMAN RIGHTS

A primary issue that arises with respect to environmental refugees and their
international recognition is the unwillingness of States to accept the same in their territory on

25 JAMES MC ADAM, CLIMATE CHANGE, FORCED MIGRATION AND INTERNATIONAL LAW, 15 (2012).
26 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted on Sept. 10, 1969
by the Assembly of Heads of State and Government, CAB/LEG/24.3 (entered into force on June 20, 1974) art.
1.
27 Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central

America, Mexico and Panama, in Cartagena, Colombia, 19-22 Nov. 1984, Concl. III, 5, reprinted in 2 UNHCR,
COLLECTION OF INTERNATIONAL INSTRUMENTS AND OTHER LEGAL TEXTS CONCERNING REFUGEES AND
DISPLACED PERSONS 206, 208 (1995).
28 IRENE KHAN, THE UNHEARD TRUTH: POVERTY AND HUMAN RIGHTS, 15 (1st ed., 2009).
29 Id.
30 Anna Lindley, Questioning drought displacement: environment, politics, and migration in Somalia, 45 FMR 39

(2014)available at http://www.fmreview.org/crisis/lindley.html.
31 Michelle Leighton, OHCR, Forced Displacement in the Context of Climate Change: Key issues for legal protection of

migrants and displaced person climate change and displaced person, 8 available at
http://oppenheimer.mcgill.ca/IMG/pdf/Leighton_MAH_EditsV2.pdf [hereinafter Forced Displacement].
32 SIERRA LEONE, OFFICE OF THE PRESIDENT, SIERRA LEONE: 12 YEARS OF ECONOMIC ACHIEVEMENT AND

POLITICAL CONSOLIDATION UNDER THE APC AND DR. SIAKA STEVENS, (1980).
Spring, 2017] Climate Refugees: Acknowledging Imminent Threat 28

grounds of the CRSR and PRSR. The recent judgment of the New Zealand Supreme Court in
the case of AF (Kiribati) is pertinent to this discussion.33 In the referred case, the Court
rejected an application for the grant of refugee status on grounds of climate change in the
Pacific Island nation of Kiribati.34 The reasoning of the Court was based on the lack of
environmental degradation as a ground under the Refugee Convention. However, New
Zealand was not the first State to refuse entry to an environmental refugee; this has
previously been done by the Australian Courts,35 and even the Indian government.36

It is noteworthy to mention here that the New Zealand Court failed to take account
of the limited capacity of Kiribati to take care of its population because of the ongoing crisis.
Such failures, giving rise to refugees, raises questions on the justification given by States to
deny entry to people who are displaced on environmental grounds. The author, in this part of
the paper, will analyse such reasoning of the State, while also countering the same with
arguments in favour of these refugees.

A. THE FLOODGATE ARGUMENT

The most common reasoning that was also adopted by the Court in AF Kirtibati, was
the “floodgate reasoning”, wherein States contend that if they accept a person who amounts
to an environmental refugee, the same would open doors for millions who are facing similar
deprivation, accepting whom would not be economically feasible for the State37 as witnessed
in the Macedonia case where the country refused to grant entry to the refugees on the ground
of lack of resources to cope with the influx.38 This argument appears untenable on the face of

33 AF (Kiribati) [2013] NZIPT 800413 at 39 (New Zealand).

34 Id.
35 Mohammed Matahir Ali v. Minister of Immigration, [1994] FCA 887 (Aus.).
36 HANS GUNTER BRAUCH, FACING GLOBAL ENVIRONMENTAL CHANGE: ENVIRONMENTAL, HUMAN,

ENERGY, FOOD, 303 (2009).

37 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 [hereinafter Non- Refoulement Principle]; Jessica Rodger, Defining
parameters of the non-refoulement principle, LLM Research Paper at Victoria University of Wellington, available at
http://www.refugee.org.nz/JessicaR.htm#1.
38 Macedonia using Refugees as Lever, BBC, (May 6, 1999) available at
http://news.bbc.co.uk/2/hi/europe/336774.stm.
29 NLUJ Law Review [Vol. 4.1

it as the UNHCR has pledged to provide for funds to countries who accept such refugees,
thereby making the contention of the States completely invalid.39

B.THE SELF-DEFENCE ARGUMENT

The most cogent argument relied on by the States is the self defence argument.
Article 51 of the United Nations Charter [“UN Charter”] allows a member State the right of
self-defence if it anticipates an armed attack.40 However, the States have contended that the
same is not just restricted to mere armed attacks,41 and include massive exodus of refugees as
a threat too.42 The States relying on the conventions state that there exist justifications for
departure if the persons pose a danger to the security of the country.43 Therefore, the States
use this argument to contend that refugee flows have the capability of threatening the stability
of the receiving countries,44 which is why they do not allow the same. This argument despite
being the most tenable falls short of taking into consideration the basic human right of life
and survival, to which every individual is entitled. This shall further be discussed through the
subsequent part of the article.45

C.THE SOVEREIGNTY ARGUMENT

The States raise respect for sovereignty as a ground for rejecting refugees and argue
that they have the sole discretion to determine whether a foreigner should be given entrance
to their dominion.46 Thus, they justify the act of not granting entry to environmental refuges
as an exercise of their sovereignty.47 So much so, that States also try to evade the principle of
non- refoulement, which obligates every State to protect an individual whose life is threatened,

39 Resettlement, UNHCR, available at http://www.unhcr.org/resettlement.html.

40 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XV, art. 51.
41 NEYIRE AKPINARLI, THE FRAGILITY OF THE FAILED STATE PARADIGM: A DIFFERENT INTERNATIONAL LAW

PERCEPTION OF THE ABSENCE OF EFFECTIVE GOVERNMENT, 128 (2010).

42 UN Security Council, Security Council resolution 688 (1991) [Iraq], 5 April 1991, S/RES/688 (1991).
43 Refugee Convention, supra note 3 at art. 1(f) & 33.
44 Charles B Keely, How Nation States Create and Respond to Refugee Inflows, 30 INT’L MIGRATION REVIEW 1046

(Winter, 1996).
45 Infra, at pt. C, 8.
46 Nishimura Ekiu v. US, 142 US 651 (12 S.Ct. 336, 35 L.E.d. 1146)(U.S.).
47 Forced Displacement, supra note 31.
Spring, 2017] Climate Refugees: Acknowledging Imminent Threat 30

on grounds that the same is applicable for refugees in the territory of the host States48 and not
the border,49 thereby terming their acts of refusing entry valid if the refugees are at the border.

The States no doubt raise compelling arguments to support their stance of non-entry
to the refugees but the same fall short on humanitarian grounds, as sovereignty of a State
cannot be a justification for it to commit human right violations and non-entry to these
refugees in a way leads to their human rights being violated.

The author now presents arguments put forward by the supporters of environment
refugees:

A.THE NON-REFOULEMENT ARGUMENT

The principle of non-refoulement provides for the protection of refugees from being
returned to places where their lives are threatened.50 This principle, which has not only
attained the status of customary international law51 but also a jus cogens norm,52 obligates the
States to protect such refugees.53 Therefore, by virtue of the binding nature of the principle,
every State is bound to allow an environmental refugee entry into their territory whose life is
threatened due to the existence of a natural disaster.

B.THE HUMAN RIGHTS ARGUMENT

Since refugee law is concerned with the identification and guaranteeing the rights of
refugees, it has a fundamental link with human rights law.54 Especially in cases of mass influx,
the States have been held to have a minimum obligation to ensure admission for safety,

48 Catherine Phuong, Identifying States’ Responsibilities towards Refugees and Asylum Seekers, Esil Research Forum,
International Law: Contemporary Problems, Geneva, 2005available at http://www.esil-
sedi.eu/sites/default/files/Phuong.PDF.
49 Sale, Acting Commissioner, INS v Haitian Centers Council (1993) 113 S.Ct 2549 (U.S.).
50 GUY S GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW, 117 (2nd ed., 1996) [hereinafter GILL].
51 Id.
52 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).
53 GILL , supra note 50, at 167.
54 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.
31 NLUJ Law Review [Vol. 4.1

security55 and respect for basic human rights.56 These basic human rights have not been held
subordinate to peace and security,57 as the basic necessary rights of individuals prevail over
rights of security. Hence, refuge cannot be denied on grounds of peace and security.

C.THE RECOGNITION ARGUMENT

The Conventions on refugees when enacted did not cover natural disasters i.e. events
occurring due to unstable environment.58 However, the concept of these environmental
refugees today has received international recognition as the UNHCR has undertaken steps to
help them,59 thereby, indicating their inclusion under the definition of the convention.60

A scrutiny of the above arguments supporting the inclusion of environmental

refugees in the definition of refugees presents a better case as they primarily rest on
humanitarian grounds rather than private concerns of the State. The author, in the next part,
concludes the paper by providing recommendations to make the existing model more
efficient and effective.

V.THE CURE TO 50 MILLION ENVIRONMENTAL REFUGEES: RECOMMENDATIONS AND

SUGGESTIONS

The present paper discusses the concept of refugees and how the definitions required
an expansion to include environmental refugees too. However, after discussing arguments
from both sides, it is clear that there needs to be dynamism while interpreting the term
refugees and States need to accept these individuals in the interests of upholding the basic
tenets of human rights. Despite the same, the current model is not fool proof and has certain

55Non- Refoulement Principle, supra note 37.

56 International Maritime Organization (IMO), International Convention for the Safety of Life At Sea, 1
November 1974, 1184 UNTS 3.
57 ANTHONY C., INTERNATIONAL LAW AND THE USE OF FORCE, 118 (1993).
58 Friends of the Earth, A citizen’s guide to climate refugees, 1 (2005), available at

www.foe.org.au/download/CitizensGuide.pdf (noting climate change as cause of EDPs).

59 Climate Change UNHCR, supra note 21.
60 Jessica B. Cooper, Environmental Refugees: Meeting the Requirements of the Refugee Definition, 6 N.Y.U. ENWrL. L.J.

480, 484 (1998).

Spring, 2017] Climate Refugees: Acknowledging Imminent Threat 32

lacunae. The author now provides certain recommendations to improve the working of the
system, so that it achieves the purpose behind the same:

A.SETTING UP SIMILAR INITIATIVES AS NANSEN

The UNHCR in furtherance of its initiative to protect refugees has come out with
multiple initiatives. One such initiative was the “Nansen initiative” wherein they aimed at
protecting the people who were displaced across borders in context of disasters induced by
climate change.61 Nansen organises and facilitates inter-governmental regional consultations,
fosters the discussions surrounding climate refugees and also advocates States to accept these.
It was the Nansen Conference on Climate Change and Displacement in Oslo (June 2011) that
ultimately led to Norway and Switzerland pledging at the UNHCR Ministerial Conference in
December 2011 to address the need for a more cogent approach for protection of climate
refugees. However, given the restriction of this initiative to 9 countries, similar initiatives can
be undertaken by the other states or the UNHCR so as to uplift and address the condition of
the refugees and ensure that they get refuge.

B.REORIENTING THE DEFINITION OF REFUGEE

A major hurdle faced by an environmentally displaced person is the lack of

environment as a ground under the conventions. Considering the volume of such people and
their plight, the definition of refugee should be expanded so as to include climate change as a
ground for persecution. An alternative option could be the establishment of a new category
which grants legal status to individuals that lose homes due to climate change. Even if these
people are not granted the same protection as refugees, they can be offered certain basic
temporary reliefs in the form of entry in the borders, till the situation in their home country
improves.

61Nansen Initiative, Disaster Induced Cross-Border Displacement, available at https://www.nanseninitiative.org/what-

we-are-learning/.
33 NLUJ Law Review [Vol. 4.1

C.RESOLVING THE DICHOTOMY BETWEEN NATURAL AND MAN-MADE INDUCED

NATURAL DISASTERS

A mistake that has been committed by the propounders of the concept of

environmental refugees is treating natural factors in the same manner as man-made induced
natural factors.62 The convention needs to clearly bifurcate the two as the former is a
permissible ground for categorisation as ERs while the latter is not.

D.FORMING SOLUTION ALLIANCES

The States opposing ERs justify the same on grounds of economic considerations and
self-defence. These concerns can be handled in form of alliances which facilitate the
economic concerns mentioned. This demand for alliance has previously been raised by the
UN Office for the Coordination of Humanitarian Affairs [“UNOCHA”].63 Such an alliance
could be achieved by developing a quota of such environmental refugees which will be
accepted by every country.64 Second, pooling of financial resources could be another
alternative to tackle the economic concerns of the States.

The concept of environmental refugees which was once alien to the world has
become a legal conundrum today. These refugees might not have recognition under the
Refugee Conventions, but there has been persistent demand for expansion of the definition.
Arguments of non-refoulement and humanitarian considerations have been put forward to justify
this stance. This demand is striking especially in Africa which is most vulnerable to climate
change;65so much so that the UNHCR has estimated that over 700,000 Sudanese nationals

62 Antonio Guterres, High Commissioner’s Dialogue on Protection Challenge, available at

http://www.unhcr.org/admin/hcspeeches/567139aa9/high-commissioner-dialogue-protection-challenges-
understanding-addressing.html.
63 SUSAN F. MARTIN, INTERNATIONAL MIGRATION: EVOLVING TRENDS FROM THE EARLY TWENTIETH

CENTURY TO THE PRESENT, 214 (2014).

64 Brian Palmer, There is no such thing as climate change, Nov. 16, 2015, available at
https://www.nrdc.org/onearth/theres-no-such-thing-climate-change-refugee.
65 John Vidal, Sudan – battling the twin forces of civil war and climate change, THE GUARDIAN, Nov. 21, 2011, available at

https://www.theguardian.com/environment/2011/nov/21/sudan-civil-war-climate-change.
 Spring, 2017] Climate Refugees: Acknowledging Imminent Threat 34

have fled the State following years of chronic drought.66 These individuals have been granted
refugee status in countries like Eritrea, Ethiopia, Somalia and Uganda,67 but every refugee in
the world is not as privileged as the Sudanese migrants, as even today States deny entry to
refugees citing the above mentioned conventions as a reason. Therefore, there exists an
imminent need for recognition of these environmental refugees as refugees under the
convention.

The present scenario of environmental refugees can be briefly summarised in the

words of present Secretary-General of the United Nations, Antonio Guterres “Refugees are not
terrorists, they are often the first victims of terrorism.” Let us hope that the States do take note of the
plight of these environmental refugees who are forced to leave their home countries for
reasons beyond their control.

66 United Nations Environment Programme, Population Displacement and the Environment, available at
http://postconflict.unep.ch/publications/sudan/05_displacement.pdf.
67Id.

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