Yashwini Chauhan

“Our islands will be uninhabitable in the decades ahead,” former president of Kiribati Anote Tong warned, as chunks of the population may have to relocate as a result of rising sea levels.
The former President of the Pacific island nation of Kiribati had said in an interview with CNBC back in 2018, alerting the world to the status of the natives of Kiribati and how, if no strict action is taken in the coming decades, it could potentially turn its citizens into “climate refugees.”
“If we are to remain on the islands, we have to raise the islands,” Tong said, adding that he believed the relevant technology and resources existed, “but they’re not being made available.” To build climate resilience, the remote nation has consulted foreign governments and companies on land reclamation technology as well as the idea of external floating accommodation.
Other remote Pacific island-nations such as Tuvalu face similar issues, but the risk of environmentally displaced people affects countries from Bangladesh to Kenya.

There are currently no legal protections for ‘climate refugees.’ This article assesses the law on refugees and addresses the legal protection gap, as climate migrants are not a recognized category under international law. The lack of legal recognition of climate migrants constitutes a borderless human rights crisis, and international law must evolve to protect these displaced populations. The absence of a legally binding framework for climate migrants is an injustice born from colonial legacies, environmental racism, and the intentional design of international law to exclude those most at risk. Climate displacement doesn’t respect borders, and neither should our compassion or our laws.

The Legal Gap: Who Is a Climate Refugee?

The term “climate refugee” describes a person displaced because of environmental change exacerbated by climate change. Climate refugees are not the same as traditional refugees, whose status is defined in the 1951 Refugee Convention. The legal categories do not fit for climate refugees since their displacement results from slow-onset events, such as desertification and sea-level rise, and sudden disasters like hurricanes and floods.

Legal Challenges for Climate Refugees:

• Lack of Legal Definition: Climate refugees are not defined by the 1951 Refugee Convention or its 1967 Protocol. The said instruments deal with persecution on grounds of race, religion, nationality, membership of a particular social group, or political opinion, and leave out environmental reasons.
• Jurisdictional Ambiguities: Many displaced individuals remain within their country’s borders, classifying them as internally displaced persons (IDPs). International law provides limited protection for IDPs compared to refugees who cross international borders.
• State Sovereignty vs. Responsibility: International law often prioritizes state sovereignty, making it difficult to impose obligations on states to accept climate refugees. The principle of non-refoulement, central to refugee law, does not explicitly extend to climate-induced displacement.
• Loss of Statehood: In island nations such as Kiribati and Tuvalu, complete submersion is at risk due to increased sea levels. Such citizens face a peculiar problem: statelessness, with no apparent legal tools to deal with the same.
• Lack of Binding Agreements: Treaties like the Paris Agreement focus more on curbing climate change than on displacement. The lack of international climate-induced migration binding agreements adds to the problem.

In 2020, the UN Human Rights Committee acknowledged that climate-related risks could violate the right to life, a core human right. While this ruling marked progress, it did not grant legal refugee status to climate migrants, highlighting the contradiction between recognition and protection in current frameworks.

The Ground Reality

Case Studies:

• Kiribati and Tuvalu: Resilience Amid Rising Seas
  • Kiribati’s “Migration with Dignity” Policy: In anticipation of the high impacts, Kiribati established its “Migration with Dignity” policy, which focused on planned and proactive relocation. It equips citizens with the skills to migrate as skilled workers, so they are not perceived as climate refugees but as contributors to host societies. Kiribati also purchased land in Fiji for resettlement purposes.
  • Tuvalu’s Advocacy for Climate Justice: Tuvalu has actively sought international support, emphasizing the urgent need for global cooperation in reducing emissions and providing financial aid for adaptation and mitigation. The country has also explored innovative solutions like artificial islands to preserve sovereignty and cultural heritage.

• Bangladesh: Battling Climate Vulnerabilities
  • Community-Based Disaster Risk Reduction: Bangladesh has adopted adaptive strategies like early warning systems, cyclone shelters, and community-oriented disaster preparedness initiatives. The local populations receive training to effectively respond to natural disasters, thereby decreasing mortality rates and strengthening resilience.
  • Challenges and International Support: Despite these efforts, the scale of displacement overwhelms resources. Coastal areas face salinization, affecting agriculture and drinking water. International aid and cooperation are crucial for enhancing Bangladesh’s infrastructure, providing climate-resilient housing, and supporting displaced populations.

• Hurricane Katrina (USA): Lessons from Internal Displacement
  • Socio-Economic Disparities: The disaster exposed stark inequalities, with low-income and marginalized communities being disproportionately affected. Many lacked resources for evacuation and faced prolonged displacement.
  • Policy Implications: The federal response to Hurricane Katrina underscored the need for integrated disaster management frameworks, equitable resource allocation, and resilient alternative housing. It also exemplified how climate-related events intensify existing socio-economic vulnerabilities, offering valuable lessons for international disaster preparedness strategies.

• Central Sahel: Drought-driven conflicts over resources:
  • The Central Sahel region of Africa, which includes Burkina Faso, Mali and Niger, is facing an unprecedented humanitarian crisis. Over 16 million people need assistance and protection, marking a 172 percent increase from 2016. The number of internally displaced people has surged by over 2,400 percent since 2014, and food insecurity has risen by 532 percent.
    

If we are to share an insight on each of the above countries, we will discover that most of these exploitations and conflicts arising in the regions are a result of the era of colonialism. From the 1890s to 1960, Burkina Faso, Mali and Niger were subject to colonialism. During this period, the colonial government divided the countries into “utile,” or useful, areas and “inutile,” or useless, areas. The ‘utile’ parts received all the investment and resources, while the ‘inutile’ parts suffered from the lack of economic growth. The effects of this separation persist to this day. 

According to the World Bank, up to 216 million people could be displaced by climate change by 2050 across six regions. This is a global reckoning underway, and one that current migration systems are wholly unprepared for.

Borderless Crime: Can We Call It Injustice Without Borders?

European Network Against Racism’s recently published report illustrates how racialized and marginalized communities are disproportionately exposed to the effects of climate disruption mainly because of (neo)colonial capitalism, “the ideology and practice of maximizing profits and wealth for a few a top a racial hierarchy, by extracting this wealth from the land, labor, and resources of others; if there is no wealth to extract, communities often undergo forced assimilation, or are completely excluded from the accrued wealth and related services”.

For example, the indigenous lands of the Saami and Inuit people in the Arctic are being exploited because of extractivist projects that remove large amounts of natural resources for capital gain.

In France, hazardous sites, like incinerators and waste management facilities, are more likely to be located near towns with higher immigrant populations, whereas communities in the French Caribbean islands of Martinique and Guadeloupe are being exposed to a toxic pesticide named chlordecone, despite being outlawed in the United States and metropolitan France. Also, Roma communities in Romania are forced to live near landfills, where the air pollution and odor emitted become worse as the environment gets warmer and warmer.

The deep disproportion between the least responsible ones for climate crisis, who will be most heavily afflicted, and, on the other hand, the most responsible ones, whose agency is usually unfettered and who will be better protected, creates a situation of fundamental injustice and a clear case of systemic violence not only on local level, but on a global scale as well.

To put it plainly: the nations most responsible for historic carbon emissions like the United States and many European countries are the least vulnerable, and often the least willing to open their borders to those suffering from the consequences. This global protection gap is not incidental. It is built into the very structure of international politics and trade.

At the same time, companies have gained great political influence, which allows them to oppose ending fossil fuel dependency and preserve a business model of only partly restrained fossil fuel extraction and combustion.

Climate crisis is evolving as a critical feature of the aforementioned structures, which perpetuate violence, are worsening the already existing inequalities, and are creating new forms of oppression. To give a broader picture of how we might look at the connection between structural violence and environmental degradation, the latter can indeed be characterized as a form of the former. 

Claiming that the climate crisis will potentially cause violence would be simply disorientating. Climate crisis is itself violence and, therefore, we shouldn’t focus exclusively on its final impact, but understand the historical background of the system and the institutions that lie at the root of climate disruption.

Therefore, although we are trying to find our way towards true climate justice, there are no simple fixes. It is timely that we bring a debate of power, racism, and inequality (including social, economic, racial, and gender inequality) into the center of the climate justice movement and draw a connection between institutionalized violence and climate crisis by bringing visibility to the ones that are and will be most affected; climate talks with adequate representation from racialized communities are more than essential.  Overall, decolonized and anti-racist climate action is needed to address the climate crisis in dimensions beyond strictly environmental.

Legal Innovations: What Can Be Done?

A. Create a New Climate Refugee Convention

The Faculty of Law at the University of Limoges has proposed a Draft Convention on climate refugees as environmentally-displaced persons with a proposed Article. 2(2) stating:
“Environmentally-displaced persons” are individuals, families, groups, and populations confronted with a sudden or gradual environmental disaster that impacts their living conditions, resulting in their forced displacement, at the outset or throughout, from their habitual residence.
A new convention may be the best way to ensure that the connections between climate change and migration are properly assessed. Some organizations report that a new convention must “qualify individuals and communities that cannot avail themselves of government relief from the effects of the climate crisis as those who are “persecuted” and thus allowed to formally claim asylum in a country of their choosing; and it must do so without the need to identify a specific polluter or industrial process as the source of such persecution.” Just as the Geneva Conventions emerged from the atrocities of war, the climate crisis demands a new legal instrument born from planetary emergency. A dedicated Climate Refugee Convention is becoming an overdue necessity.

B. Meet International Climate Obligations

International non-profits and scholars call for States to meet their obligations under the climate law framework established by the United Nations Framework Convention on Climate Change (“UNFCCC”). By meeting their obligations under the UNFCCC, the international community will limit climate change to 1.5°C compared to pre-industrial levels. While this will not legally protect climate migrants, it may mitigate how many people are displaced.

C. Appoint UN Special Rapporteur

International organizations and scholars call for a UN Special Rapporteur on Human Rights and Climate Change “to guide international action on climate-induced displacement.” UN Special Rapporteurs “are independent experts appointed by the UN Human Rights Council with the mandate to monitor, advise, and publicly report on human rights situations in specific countries (country mandates) and on human rights violations worldwide (thematic mandates).” In 2018, the Human Rights Council appointed a Special Rapporteur on human rights and the environment. Therefore, it is plausible and recommended that the UN Human Rights Council appoint a Special Rapporteur on human rights and climate refugees. Additionally, the Head of the Migration, Environment and Climate Change Division at the UN Migration Agency states that “human rights-based approaches are key for addressing climate migration.

What Justice Demands Now

To recalibrate, we are now sitting with the problem of  Island nations and the sub saharan countries disappearing right in front our eyes, With Kiribati and Tuvalu, facing a rise a in sea levels, nearly submerging underwater, and the Central Sahel region of Africa, including Burkina Faso, Mali and Niger experiencing desertification.
The victims of this climatic disorientation—the climate refugees- have no place to seek help, no law has been established to protect their rights, and they are asked to forgo any sense of security in terms of their livelihood.
The culprits are none other than the people sitting in brick houses and glass chambers, unconscious of the state of agony they are unleashing upon those who are helpless. People with the right amount of money and power are not ready to lift a finger to help those in need. Not even considering it a topic of discussion. Why should they? As one may ask, it’s because they are the ones responsible. They have created this rapid decline in the environment, resulting in the loss of hopes, dreams, and livelihoods.
The solution is now to recognise those who are wounded and provide all the assistance and care they deserve. 

REFERENCES

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Protecting Climate Migrants: A Gap in International Asylum Law

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