Blog post by Sincy Wilson, a PhD Research Scholar at the School of Law Christ Deemed to University, India
Who are climate refugees?
Climate refugees are people who are displaced within their country or outside it, due to the effects of climatological factors including extreme temperatures, widespread floods, droughts, rises in sea level, tsunamis, aggravating coastal erosion, desertification, and other natural calamities. The role of extreme weather events in the migration of the population began in India’s past. Scholars believe that climate change was a major cause of the end of many civilizations and at present, climate change is the most significant factor in the creation of climate refugees. The predictions of climate scientists and experts concerning climate change and its ill effects are coming true now.
It has been reported that close to 1.5 million people are classified as internally displaced in India every year mostly due to climate change. Globally, 19.3 million people are reportedly displaced due to climate change, with this subcontinent being identified as one of the most vulnerable regions in this regard. The Precise data to show the exact number of ‘climate refugees’ is difficult to get due to the lack of recognition by legal regimes of the existence of this specific type of refugees; there are no laws or international conventions recognizes the people who are displaced internally or externally due to the effects of climate change as ‘refugees’. The lack of figures can further be attributed to a lack of clarity even among scholars and policymakers in defining refugees of climate change or environmental disaster.
Climate change poses a significant threat to the socioeconomic stability and population health of India and the countries that border it. Pakistan, Bangladesh, Bhutan, southern Nepal, Myanmar (Burma), and northern territories in the Himalayan mountain range are experiencing increasingly frequent and severe climate events. In the absence of adequate national response systems and resources to mitigate the impacts of climate events in the Himalayan region, environmental disasters and slow-onset climate impacts on agriculture and livelihood create push factors that prompt large scale migration, both within countries of origin as well as cross-boundary migration.
In the case of Bangladesh, which cannot accommodate internal migration on such a large scale, India will be the natural choice for many climate migrants because it has already absorbed millions of Bangladeshi migrants both legal and illegal since Bangladesh first came into being in 1971, with the numbers increasing every year. Already, around 15 million documented Bangladeshi migrants live in India. This is more than half of the total number of documented migrants in India, while the actual number of Bangladeshi migrants in India is estimated to be higher because of undocumented migration. It is therefore immensely important for both countries to work together to handle migration and to manage their 4,097 kilometer-long border. India also needs to be proactive in initiating the Joint Climate Change Mitigation Forum, which could help Bangladesh and its citizens with mitigation and adaptation measures. This is crucial for India, because dealing with such a massive influx of people into its own territory will be an enormous challenge.
Does India have displacement laws to cater to the needs of climate refugees?
In India people have been displaced due to unplanned developmental activities, such as the construction of dams, bridges and railways which have taken place without consideration of scientific and environmental implications. Various developmental activities do cause climate change and thereby result in the creation of climate refugees. The fact that development projects are usually located in remote villages, hills and forests means that those displaced tend to be the indigenous people who have been the traditional agents of conservation. Here displacement has meant a loss of livelihood, habitat and assets, social disruption and disorder and severance from an ecosystem which had sustained them. Most critically, these displacements threaten the poor and the weak with even greater impoverishment. It is only in these situations of so-called ‘involuntary resettlement’ which have come to the attention of social and environmental activists, and are thus highlighted, that lead to some measure of state intervention. In most cases total displacement with loss of home and livelihood has resulted and gone unnoticed by the state.
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 is the law dealing with providing compensation in cases of acquisition of land by Government in order for developmental activities to take place in the state. Another piece of legislation which deals with rehabilitation in case of climate events is the Disaster Management Act, 2005, which prepares disaster plans, prevents or mitigates against effects of disasters, and coordinates and manages responses. However, these laws do not address the rehabilitation of climate refugees who are coming from other nations. Adding to the existing laws in order that they respond to the needs of climate refugees would be a great achievement from India’s side.
India’s different approach towards refugees
India is considered to be the largest refugee receiving country in South Asia. The “South Asian region” consists of Bangladesh, India, Sri-Lanka, Bhutan, Pakistan, Maldives and Nepal. All these nations have made an Organization called the South Asian Association for regional cooperation (SAARC) as SAARC members are not supporting Refugee Convention, 1951 nor the Refugee Protocol 1967. As a member India must adhere to the policies, practices, uniform decisions and principles of SAARC in order to get support from the member nations in the smooth functioning of the nation. In fact in some cases India, has taken up different footsteps in compare to other SAARC nations in ratifying other International conventions such as 1984 Torture convention, International Convention on the Elimination of All Forms of Racial Discrimination, 1969, the Convention on the Rights of the Child, 1989 and the Convention on the Elimination of All Forms of Discrimination against Women, 1981 etc. which are meant to protect vulnerable populations such as woman, children and those who are facing torture during police interrogations and in other situations. In addition to this, India is obliged to adhere to the customary international law’s principle of non-refoulement, according to which; there can be no forceful repatriation. Further, Article 3 of the Convention against Torture (CAT) states that, “No state party shall expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
India is not party to the 1951 Refugee Convention or its 1967 Protocol and does not have a national refugee protection framework. However, it continues to grant asylum to a large number of refugees from neighbouring States and respects UNHCR’s mandate for other nationals, mainly from Afghanistan and Myanmar. While the Government of India deals differently with various refugee groups, in general India shows respect towards the ideals and principles of UNHCR in dealing with refugees.
Threat to sovereignty: is this a big reason?
The issue of sovereignty might be another reason why India is not party to the Refugee Convention. Article 35 of the Refugee Convention, vests the responsibility of supervising the refugee processing on UNHCR, which India might view as a threat to its sovereignty. Indian government along with the governments of other South Asian countries have maintained that migration is a matter of bilateral and not multilateral relations, and view international agreements as restricting their freedom of action. Moreover, India fears that ratifying the Refugee Convention might lead to an infiltration of criminals and unwarranted elements, since it might compel it to accommodate refugees from other nations. In particular, India would be opposed to welcoming refugees from Pakistan. This is why India did not want to take part in the Refugee Convention and remains silent with respect to accommodating climate refugees through a specific policy intervention.
Having a Liberal Constitution will ensure right to life of climate refugees
The need for protection and conservation of the environment and for sustainable use of natural resources is reflected in the constitutional framework of India and also in the international commitments of India. Article 51A and Article 48A of The Constitution of India (these two provisions inserted to the constitution after the Stockholm Conference 1972 to which India is signatory) do give importance to protecting and improving the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.
While the laws are silent on climate refugees and their proper recognition and rehabilitation, they do offer the means to deal with situations which will harm the environment. However at the departmental level these are not taken seriously and thus cause much destruction to the environment. The strict observance of laws is a greater requirement at this stage so that climate events will not create this huge number of people displaced from their original habitat.
India does not have any specific domestic law for dealing with refugees. Although-Article 21(Right to life) and 14(Right to equality) of the Indian Constitution states that right to life and right to equality should be ensured to non-citizens which means that they could apply to climate refugees. While refugees are referred to under the Passports Act, 1967 and the Foreigners Act of 1946, defining a person of non-Indian nationality as a “foreigner, independent of his/her specific legal status”, there are no laws for the protection of refugees. In the absence of international, national, or regional-level legal and policy frameworks to manage migration, India is likely to experience a substantial increase in the unplanned immigration of climate migrants. So it is high time to take up some serious step in this regard.
To sum up
India is known for its large democracy and multi-party system, and with varied cultures and traditions is averse to any outside interference in its internal matters as it sees itself as already dealing with issues within the country. Refugees affect the political stability of the country and politicians are motivated by concerns over how decisions regarding refugees will be viewed by the electorate. It’s unwillingness to tolerate any kind of outside interference in its internal matters does not seem to be wrong as every country has the right to maintain its sovereignty. Recognizing climate refugees through the refugee convention is a possible solution but it has its limitations. Another way to respond to the problems face by climate refugees is by making temporary laws and policies at the regional level. India and its neighbouring have the chance to think differently and make policy changes to accommodate climate refugees without waiting for the international community to respond.
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This post was originally published on Refugee Law Initiative Blog.