CLIMATE REFUGEES: LEGAL LACUNA AND INFLUENCE OF GEOPOLITICS

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CLIMATE REFUGEES: LEGAL LACUNA AND INFLUENCE OF GEOPOLITICS
–        Spoorthi Anur,

Christ Deemed to be University.
ABSTRACT
Climate change is predicted to act as a catalyst for the large scale displacement of people. The Refugee Convention of 1951 and the Convention regarding Stateless Persons of 1954 focus excessively on migration of people due to political, social or economic turmoil. The Refugee Convention further states that a refugee is any individual fleeing persecution. This lacuna within international law is that it excludes a major migratory sub group thus not allowing them to access basic human rights and resources. Several authors have expressed their concern regarding the future of low lying areas such as the Tuvalu islands, Kiribati islands, the state of Mauritius etc. Adverse climate change could eventually render these islands uninhabitable.


After thoroughly perusing through several prominent authorities regarding the issue the researcher concludes that there exist two major options to address the same, they include adoption of a multilateral treaty regarding climate migration or an amendment to the Refugee Convention to include climate refugees within its scope. A basic analysis of the both these schools of thought establishes that neither is without flaws in implementation. Thus, the researcher after analyzing all opinions and solutions available to establish a viable plan of action attempts to suggest a pragmatic solution for the same.
KEYWORDS: Climate change, Refugee Convention 1951, Displacement, Refugee, lacuna, Human rights, multi-lateral treaty
INTRODUCTION
The refugee convention of 1951 the definition of a refugee will apply to anyone who “As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”[1]This convention was enacted with the background of the Second World War, and the political and social situation of the time has greatly influenced the shaping of the definition of a refugee. As can be deduced the main ethos of the convention can be derived from the term “persecution”
It has been predicted that the largest displacement in 2020 is going to be due to environmental conditions. In today’s day and age when the population that seeks asylum has extended to those fleeing their countries due to unprecedented climatic situations and several geological shifts, the very fact that the definition does not consider climate change as a legitimate reason to claim asylum leads to the exclusion of a large number of people from the purview of law. As is known there exists a considerable difference in the definitions of refugee, asylum seeker and stateless person and subsequently the rights of the above vary accordingly. Thus, it is imperative that it the classification environmental migrants as refugees be studied and a viable framework for the same be prescribed.
PREDICTED CLIMATE CHANGE
Estimates of the quantity of co
nceivable ‘atmosphere exiles’ is predicted to be 200 million by 2050. This represents a quadruple increment in the quantity of stateless and displaced people right now qualified for insurance under the UNHCR command. What’s more, in 2007, the IPCC recommended that more than 600 million individuals at present living in low-lying ocean fronts which amount to around 438 million in Asia and 246 million in cripplingly underdeveloped nations, will be the most prone to potential dangers of natural calamities in this century. The purported ‘atmosphere hotspots’ – low lying islands, waterfront districts, huge waterway deltas and developing or under developed areas – stay in threat of catastrophic natural change. Under current global law, any relocation or migration that is environmentally induced from these zones wouldn’t be such a grave threat to the global population dynamic if the organizations and legal systems that have been put in place to address the same aid them with necessary resources and assistance.
WISHFUL SINKING: THE RAPID SINKING OF TUVALU ISLANDS
The highest elevation within Tuvalu is 4.6 meters (15 ft) above sea level on Niulakita.[2] which gives Tuvalu the second-lowest maximum sea to land elevation of any country (after the Maldives). However, the highest elevations are typically found in narrow storm dunes near the ocean side of the islands which are prone to tropical cyclone such a situation was observed with Cyclone Bebe.[3] In March of 2015 however the storm surge brought out by cyclone Pam resulted in waves of 3 to 5 meters (9.8 to 16.4 ft) which broke over the reef of the outer islands causing damage to houses, crops and state infrastructure.[4]
Tuvalu is also affected by Perigean spring tide also called the king tide. These raise the sea level much higher than a normal high tide.[5] As a result of unprecedented sea level rise, the Perigean spring tide events lead to flooding of low-lying areas within the state, which is compounded further when sea levels are raised due local storms and waves. Thus in the future the rise in the sea level threatens to submerge the nation in its entirety as a universal estimation suggests that there will be a  sea level rise of 20–40 centimeters. Thus, in the next few decades Tuvalu shall become uninhabitable.[6]Furthermore damaged coral that accumulates and gets dumped on the islands during storms. However, if the increase in sea level occurs at a faster rate as compared to the growth of the coral reef, most of the island’s arable land might be submerged. Coral reefs were destroyed in the Second World War to build a runway at Funfeti. Roughly 10,800 residents of Tuvalu are at risk of losing their homes to climate change if the sea level rises to its estimated level .Tuvalu’s President in a press conference with The Guardian stated “There are no boundaries to the effects of climate change. We are dealing with saving human lives – and therefore saving Tuvalu is also saving the world.”[7]
CORAL GRAVEYARD: DEGRADING CORAL REEFS IN THE MALDIVES
Maldives is facing a subsequent rise in sea levels and the bleaching of its coral reefs has made it a poster child for the ill effects of climate change. It has gained increased publicity for a blueprint announced by its forme
r president Mohamed Nasheed in 2008 to purchase land elsewhere so that the Mauritian population could relocate, should the estimated sea level rise make the islands absolutely uninhabitable. A recent strategy is renting out islands and using the money received to reclaim, fortify and even build new islands and restore coral reefs.
A major problem with attempting to restore coral reefs by pumping sand onto the reefs, is that the surrounding corals gradually become covered too and die out. This adds to the pressure Mauritius already experiences from warmer waters that make the corals bleach out and eventually die. In the year 2016, it was recorded that more than 60 per cent of the corals in the region experienced bleaching because of the effect of the El Niño weather and it is estimated that they take about a decade to recover.
WILLFULLY NEGLECTED: LOSS OF LAND IN KIRIBATI
Climate change threatens the long-term survival of the state of Kiribati. The Kiribati Government acknowledges that relocation of the Kiribati population may be inevitable but close to impossible as has been stated by their national press. That have further said that relocation will always be viewed as an option of last resort and they will do all they can to preserve Kiribati as a sovereign and habitable entity. The Kiribati government needs to undertake rapid relocation of over 100,000 people in a way that preserves the dignity of those individuals who are being relocated and minimizes the burden on the contracting countries.[8]
DESERTED NEIGHBOURS: EXPANSION OF GOBI DESERT
The Gobi Desert presents a unique climatic issue. Located in central China it has expanded by an estimate of about 25,000 square miles since 1994 and its sands are now within 100 miles of the capital city of China, Beijing. The capital gets covered by about half a million tons of sand every single year which often reduces visibility to a point where even its soaring skyscrapers are barely visible. The air traffic needs to be stopped and people are forced to stay indoors during such a period.
China is one among the few that are countries worst affected by the global problem of desertification. The situation reaches such a dire state where 1.3 billion people survive on just one quarter of the average of arable land, fresh water and other essential resources. 
A recent U.S. Embassy report titled “Desert Mergers and Acquisitions” produced satellite images that shows two deserts in north-central China expanding and merging to form one single and subsequently larger desert overlapping Inner Mongolia and Gansu provinces. Furthermore Chinese highways there are regularly inundated by sand dunes.
AROUND THE WORLD AND BACK HOME : DROUGHT IN INDIA  
Although it is not widely recognized that climate change will significantly or adversely affect India whatever the assumption may be, there are few studies conducted based on how climate change is going to severely affect the migration of people. It has been estimated that 70,000 people out of the 1.2 billion Indians, specifically out of the 4.1 million people living in the Indian part of the Sundarbans islands would be rendered homeless by the year 2020.
The movement of population due to climate change is not a novel concept for the Indian subcontinent for example, several archaeological evidences indicate that people have been migrating from Pakistan to and vice versa India for the past 10,000 years in now, as a response to the changing dynamics of the summer monsoon.
Primarily climate change will result in two types of displacement in India. First, significantly increased migration is likely to arise within the India’s subcontinent due to issues such as drought, desertification, a rise in sea level water scarcity and very low food productivity. Second, climate change will most probably lead to increased flow of migrants from neighboring countries due to the accelerated effects of drastic environmental change.
The most serious climate change that currently poses a risk to India is drought. For example, a scientific study suggests that 3,00,0
00 laborers will migrate from the drought-prone Bolangir district situated in western Orissa every year. Increased drought conditions due to climate. The severity of drought is expected to severely affect western India, and about one-fourth of the total area of Gujarat and 60% of the total area of Rajasthan are likely to experience acute water-scarcity. The major river basins of Mahi, Sabarmati and Tapi are predicted to experience continued water scarcities. The semi-arid peninsular region within India and western India are predicted to experience a heightened level of migration or farmer suicide. A large part of the coastal regions especially the Konkan and Malabar coast are at risk of accelerated sea level rise, higher frequency of cyclones, and larger storm surges.
WHY A REFUGEE? – DIFFERENCES BETWEEEN THE RIGHTS OF A REFUGEE AND A STATELESS PERSON.
Certain rights are guaranteed to stateless individuals only after they’ve been awarded the status of a refugee. A few prominent articles from the Refugee Convention that outline the rights and benefits that refugees attain are listed below.
Article 16 of the refugee convention reads “A refugee shall have free access to the courts of law on the territory of all Contracting States.[9]
Article 17 – The Contracting State shall accord to refugees lawfully staying in their territory the most favorable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage earning employment.[10]
2. In any case, restrictive measures imposed on aliens or the employment of aliens for the protection of the national labor market shall not be applied to a refugee who was already exempt from them at the date of entry into force of this Convention for the Contracting State concerned, or who fulfils one of the following conditions:
(a)  He has completed three years’ residence in the country;
(b)  He has a spouse possessing the nationality of the country of residence. A refugee may not invoke the benefits of this provision if he has abandoned his spouse;
(c)  He has one or more children possessing the nationality of the country of residence.[11]
Article 20 – Where a rationing system exists, which applies to the population at large and regulates the general distribution of products in short supply, refugees shall be accorded the same treatment as nationals.[12]
Article 22 – The Contracting States shall accord to refugees the same treat
ment as is accorded to nationals with respect to elementary education.[13]
A stateless person on the other hand may be displaced from his country due to any reason unrecorded which include people fleeing nations due to climate change. However, the rights available to a stateless are far more meagre as compared to a refugee. While a stateless person is guaranteed his basic human rights and an international identity proof he cannot avail housing or education and neither does he possess a recourse in the courts of the Contracting State.
Thus, a major aspect that needs to be analyzed prior to an attempt to bridge the lacuna in climate refugee law is the fact that before the group of individuals are stateless they would have been entitled to all the rights of a national but consequent to the environmental disaster the rights they are guaranteed dwindle down to their basic human rights, which are also subject to whether the individuals are received by any state. Furthermore, their displacement is not the result of any direct cause on their part which makes the non-inclusion of environmental migrants under refugee law seemingly redundant.
Thus it is vital that the rights guaranteed to them due to the virtue of their being nationals remains unchanged and the same can only be achieved is they are incorporated within the jurisdiction of the Refugee Convention of 1951
INFLUENCE OF THE CURRENT GEOPOLITICAL CLIMATE ON CLIMATE REFUGEES
It is essential that we consider the contemporary geopolitical climate as the same greatly influences domestic refugee influx and policy. Let us consider the recent example of Turkey and its role in the Syrian refugee crisis. Turkey played a key role during the Syrian refugee crisis as it was the first nation of contact for several Syrian refugees who were fleeing persecution and they were not given the status of refugees but called “Mehman” or guests as long as the situation in Syria didn’t come to a peaceful conclusion they would be housed in Turkey. However, with the establishment of United States’ stance on Syria, the diplomatic position of Turkey changed substantially and due to such change in international policy the refugees were stopped from entering the borders and those that were within the borders were no longer “Mehman” but displaced persons who were now the responsibility of the United Nations High Commissioner for Refugees.
As has been promulgated by several jurists, the neighboring state of any politically or socially unstable nation acts as the first point of contact for those fleeing from the same. Same applies to the concept of climate change migration. If the predicted natural calamity pans out in Bangladesh, the Republic of India will pose as the first point of contact to several Bangladeshi migrants. However, a deplorable situation arises as India has neither ratified the refugee convention of 1951, nor has any history of accepting refugees into its borders. While it can be concluded that it adopts such measures due to its domestic issues such as over population and lack of resources, non-acceptance by their neighboring state will lead to a substantial disadvantage for the migrating Bangladeshi population. Furthermore, the contracting state stands at a prominent diplomatic advantage as it can coerce the Nation under climatic duress to adopt policies internationally that it would not have done otherwise.
Same applies to the Tuvalu and Kiribati islands. Being nations who possess a nonexistent international presence the political pressure on these islands will be a lot more than other nation states as they possess a very valuable resource at their disposal, a large population. Furthermore, the nation of contact for people migrating from Tuvalu islands will be New Zealand or the Island nation of Australia. While the New Zealand Supreme court in a landmark judgement granted refugee rights to a displaced Tuvalan family the same cannot be expected of Australia due to their stringent refugee laws.
Mauritius on the other hand has a substantially different issue. While the decaying coral reefs pose a threat to the native population the islands of Mauritius however hold a substantial economic value. The action plan proposed by their former president to sell part of the islands that prove to be unhabitable, received a lot of criticism within the nation state the same was very openly welcomed by the international community. Nations like the United States and Russia have the economic ability to restore swamp areas as well as rejuvenate the dying coral reefs. Thus, they have their economic resources at their disposal which puts them at a substantial gain point which makes the situation highly morally questionable.
Therefore, as much as we’d like to assume that international politics or a country’s global and diplomatic standing does not influence issues of human rights the reality swings very much to the contrary. The very reason conventions and treaties are adopted is to reduce such a power play at a global level, thus the incapacity of the international fraternity to develop a legal standard for climate refugee creates a situation driven by global power politics.
WHY A MUTLI LATERAL TREATY IS NOT THE ANSWER
A very ambitious option that has been considered by several jurists is to negotiate a novel convention, one that would make the attempt to ensure specific rights to climate or environmental ‘refugees’. There are several serious issues that arise with an approach as such. Firstly, as Walter Kälin, a Swiss legal scholar and professor of constitutional and international law at the Faculty of Law of the University of Bern, and former member of the United Nations Human Rights Committee[14]has opined that there exists a significant distinction under current international law which highlights the primary differences between individuals who are forcibly displaced and those individuals who move voluntarily. In cases disasters that take substantially long to appear at the surface like drought or agricultural degradation the line between forcibly displaced and voluntarily migrating becomes blurred and hence determining rights for the same will pose a legal impossibility. Kalin has further argued that ‘At least now and in the near future, it is impossible to determine whether a particular disaster would or would not have happened without climate change’, making a specific determination of what the obligations and responsibilities of the international community would be under any new ‘climate refugee’ convention exceedingly difficult to negotiate. And finally, there seems to be little agreement within the international humanitarian community as to whether a new convention is either possible or advisable’[15]Another view regarding the same has been posed by José Riera is Adjunct Professor in the Department of International Law at UPEACE as well as an international consultant[16] states that ‘a major question is whether there is an appetite at the international level to embark on a new process to come up with new norms and protections… my suspicion is that there is zero appetite for this’[17]
Thus, questions about where environmentally displaced persons like where they are likely to hail from, where they might proceed to and how the international and domestic systems of legal rights, duties regulations and instruments can best be utilized to protect them are presently of paramount importance.
Another aspect for such an endeavor is the facet that it would be multilateral. As we have already analyzed the importance of geopolitics in climate change the same would apply to the ratification of a new treaty. As has been seen earlier with the Paris Climate Change treaty, the enforceability of this new treaty would depend solely on its ratifying countries and how they imbibe such a treaty into their domestic laws. Thus, as has been stated by several scholars and jurists it is a viable option to rely on the existing document and increase its scope rather than propose an entirely different document that shall have the trappings of the refugee convention of 1951 and the convention regarding stateless persons of 1954. But such a view has been rejected by the United Nations Human Rights omission as they believe expansion of the definition of a refugee or even amending the convention would dilute the status of a refugee. Thus, while several high ranking officials of the UNHRC concur that climate change is an issue that needs addressal they don’t believe that environmental migrants need to be called anything different than displaced persons.
A PROPOSED FRAMEWORK
After a perusal of all arguments available regarding the issue it can be concluded that there is a large lacuna that ought to be filled and the same can be done be reaching middle ground. Several jurists after a detailed study of international refugee law have opined that the very birth of this category of refugees arises from non-environmental friendly policies, heavy industrial drives that are adopted by nations etc. Thus, the same can be classified as environmental persecution and the legal document can be interpreted to include climate refugees under the same. The argument is further substantiated by the fact that internal climatic issues like drought or water scarcity could have been easily avoided had the nation state been more pragmatic in its approach. Thus, this school of thought amounts the global climatic change to individual nations and because the displaced persons are migrating due to lacking policies of their government it can be brought within the ambit of persecution. Once this has been done a
systematic action plan can be devised by the United Nations Human Rights Commission and the United Nations High Commissioner for Refugees that guarantees the supply of basic necessities.
OOho water bottles are environmental friendly water bottles that are cheap and easy to produce and recycle. Furthermore, lifestraw is a device that purifies water from any water body regardless of how deplorable its condition which would substantially reduce the cost of fresh water supply. These have been utilized to address water shortage issues during the Syrian refugee crisis and the same can be utilized in the future to address climate change refugees as a part of the action plan.
CONCLUSION
Thus,’ climate change is an evolving issue that will pose as a real threat in the near future lading to a global humanitarian crisis that will require the cooperation of the world community. It is imperative that the international community understands the gravity of the situation and bridge the legal lacuna as soon as possible. As has been suggested previously the most apt way forward would be a wider interpretation of the term persecution thus immediately including climate refugees within its ambit without having to bank on the legislative and executive processes of the United Nations

[1] http://www.unhcr.org/3b66c2aa10, last viewed February 8 2018


[2] Lewis James, Sea level rise: Some implications for Tuvalu. The Environmentalist, last viewed 4 February 2018  

[3] Bureau of Meteorology Tropical Cyclones in the Northern Australian Regions 1971-1972, Australian Government Publishing Service, last viewed 7th February 2018

[4] Emergency Plan of Action (EPoA) Tuvalu: Tropical Cyclone Pam (PDF). International Federation of Red Cross and Red Crescent Societies, last viewed 7th February 2018

[5] David Shukhman,Tuvalu struggles to hold back tide BBC News. Retrieved 7 February 2018.

[6] Patel S. A sinking feeling. Nature. p. 734–736

[7] Greg Harman, Has the Great Climate Change Migration Begun?, The Gaurdian September 15, 2014 available at https://www.theguardian.com/vital-signs/2014/sep/15/climate-change-refugees-un-storms-natural-disasters-sea-levels-environment, last visited on Feburary 7 2018

[8] http://www.climate.gov.ki/category/action/relocation, last viewed 7th February 2018

[9] Id at p 1

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] https://www.upeace.org/academic/faculty/resident/jose-riera, last visited February 7 2018

[15] Benjamin Glahn, Climate refugees – addressing the international legal gaps, International Bar Association,(11 June 2009) available at https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=B51C02C1-3C27-4AE3-B4C4-7E350EB0F442, last visited 5 february 2018

[16] https://www.upeace.org/academic/faculty/resident/jose-riera, (last viewed 7 February 2018)

[17] Supra 14

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