Legal Status of Environmental

Refugee in International Law

Abstract:

There is a growing phenomenon growing in the global arena- Environmental refugee.

Environmental refugees are people who no longer have secure homeland due to the
environmental disasters like soil erosion, drought, deforestation and such other environmental
problems. Millions of people, apparently increasing in numbers in recent times, have to leave
their homeland seeking shelter far beyond the borders in other countries. At many instances
the displacement of such environmental refugees could be temporary or even permanent. Due
to non recognition by any international community working for the benefits of refugees, these
people suffer from grave uninhabitable conditions. Human displacement of such nature is an
intractable problem which is gaining prominence in recent decades especially in the third
world countries. This growing number of environmental refugees could well increase in
number due to the growing number of impoverished people overloading on environment.

This objective of this paper is to firstly, understand the need for classification of
environmental refugee and factors affecting them. Secondly, the legal status of such refugees
and the international standards approachable to them will be discussed in detail. Also, the
international states behaviour to this topic such as Indias will be compared and looked into.
INTRODUCTION

The devastating effect of climate change resulting in mass population migration has sparked
concerns about lack of protection of persons fleeing environmental degradation or natural
disasters. The legal status of these persons is also ambiguous. This resulted in non recognition
of the community effected by environmental disruptions or degradation. The International
Law doesnt recognise any such refugees from the fear and persecution of environmental
disruptions. These environmentally displaced persons (EDPs)1 affected by environmental
degradation can be categorised in two ways (i) environmental migrant 2 (ii) environmental
refugees3. In the light of the existing law the environmental refugees are not coming under
the definitions of Refugee under Geneva Convention of Refugee 1951 meaning they cant be
granted refugee status. The paper throws light on the issue that there is very existence of
Environmental Refugees and there is a need to amend definition of refugee.

Classifying Environmental Refugee

Among various forms of environmental disruption or degradation, some incident are of

utmost concern because they make natural habitat harsh for human survival either
temporarily or permanently and trigger large human survival migration as well. These kind of
environmental disruptions could be classified as below

1. Long term environmental disruptions which occur due to global warming,

deforestation, land erosion, salinity, siltation, waterlogging and desertification4
2. natural environmental disruptions which occur suddenly like earthquakes, droughts,
floods, hurricanes, monsoons, tidal waves, tornadoes, and volcanic eruptions5

1 Vikram Odedra Kolmannskog, Future Floods of refugees, MILJMERKE (28 Feb 2017 10:40)

2 Ibid, Environmental migrant are migrants who voluntarily or involuntarily leave their home land for
asylum

3First coined by El-Hinnawi, in UNEP Report for United Nations. Environmental refugees
involuntarily leave their homeland for asylum

4 Gregory S. McCue, Environmental Refugees: Applying International Environmental Law to

Involuntary Migration, 6 GEO. INTL ENVTL. L. REV. 158 (1993)

5 Ibid at 160
 3. industrial accidents including chemical disasters6
4. Armed conflicts7

And there is also an inextricable relation between the long term environmental degradation
and natural environmental disruptions as the former can pace as well as can have the adverse
effects of the latter.8

1. Long term environmental disruptions

The interconnection between long term environment degradation and subsequent

displacement of population can be seen in the case of the African Sahel. 9 The Sahel region of
Africa has been suffering from drought on a regular basis since the early 1980s. The area
naturally experiences alternating wet and dry seasons. If the rains fail it can cause drought. In
addition to natural factors, the land is marginal and human activities such as overgrazing,
overcultivation and the collection of firewood led to desertification, particularly when
combined with drought conditions which resulted in crop failure, soil erosion, famine and
hunger and it is reason behind many deaths, especially among infants and the elderly. 10 This
is causing migration of population for the search of an environment that can sustain them.
The potential reason behind the displacement Sahel population is global warming. 11 The
consequences of global warming on human displacement are very woeful and may trigger the
increase of more migrants due to rise in sea level.12 Considering the fact that one third of the

6 Ibid at 162

7 Tara Weinstein, Prosecuting Attacks that Destroy the Environment: Environmental Crimes or
Humanitarian Atrocities?, 17 GEO. INTL ENVTL. L. REV. 697, 698 (2005)

8 Jessica Cooper, Note, Environmental Refugees: Meeting the Requirements of the Refugee
Definition, 6 N.Y.U. ENVTL. L.J. 503 (1998)

9 Ibid at 504-506

10 Case study: drought in the Sahel , (28 Feb 2017 10:40

AM)http://www.bbc.co.uk/schools/gcsebitesize/geography/water_rivers/drought_rev3.shtml

11Alister Doyle, Climate change boosts rain in Africa's Sahel region: study, REUTERS, Jun 1, 2015
http://www.reuters.com/article/us-climatechange-sahel-idUSKBN0OH2UY20150601

12 Hermen J. Ketel, Global Warming And Human Migration, (28 Feb 2017 10:40 AM)
population lives within the sixty kilometres of water and population is growing rapidly, then
in such circumstances the rise in sea level could have a devastating effect resulting in increase
in more number of migrants for example- Egypt, India, Bangladesh, China, islands nation in
Caribbean, Tuvalu island etc.13

2. Accidents (Industrial including chemical disasters)

Industrial and chemical disasters result from activities that lead to pollution, spillage of
hazardous materials, explosions, and fires and may occur because of poor construction and
management planning, or from neglect of safety procedures. 14 The nuclear accident at
Chernobyl is one such famous example where more than 1 lakh people were displaced either
temporary or permanent because of the radiation which expanded around thirty mile zone of
Chernobyl.15 The geographic extent of such accident is not limited so the displaced
population can seek refugee status within the borders of the country where accident occurred.

3. Armed conflicts

Recent materials describe the environmental impacts of armed conflicts generally fit them
into one of three categories: 1) destruction of the environment for deliberate military
purposes, 2) destruction of the environment for economic purposes (often involving natural
resources), or 3) collateral damage.16 History abounds with examples, widespread throughout
Asia, Europe, and North America, of purposeful modification of the environment as a tool of
war.17 More recently, the United States used Agent Orange to defoliate the jungles of
Vietnam. The old Iraqi government ignited oil fields in Kuwait during the 19901991 Gulf
War and destroyed the marshes in southern Iraq following the 1991 Shia rebellion. During

13 Ibid supra note 5, at 509

14 Aurelie Lopez, The Protection of Environmentally Displaced of Persons In International Law (27
Feb, 2017 10:40 AM), https://law.lclark.edu/live/files/17391-37-2lopez

15 R.M.Alexakhin, N.I. Sanzharova, Chernobyl Radionuclide Distribution, Migration, And

Environmental And Agriculture Impacts (27 Feb, 2017 10:40 AM)
https://www.ncbi.nlm.nih.gov/pubmed/18049218

16 supra at 5

17 Ibid.
the 1999 Kosovo war, the North Atlantic Treaty Organization (NATO) bombings allegedly
damaged the environment.18 The destruction of the environment for economic purposes most
likely for natural resources has also been a problem. Several times in the last few years, the
UN Security Council has alleged and condemned the plunder of Democratic Republic of
Congos natural resources, emphasizing the concerns of the international community that the
illegal exploitation of natural resources is fuelling the conflict. 19 The list is more likely to
expand if the international authority does not respond and it may lead to population migration
due to the lack of natural resources20.

Status in International Law

The United Nations 1951 convention relating to the status of refugee 21 and the 1967 Protocol
to the Convention are the core international instruments for the refugees to secure
international protection. The Refugee convention was approved to protect Europeans
displaced after World War II22 and in 1967, a protocol to the refugee Convention was enacted
to remove the restriction that only persons fleeing persecution before 1951 within Europe
would receive assistance23. The Refugee convention defines refugee24 and enumerates their
rights and fixes the legal obligation on States who are signatories to the Convention. The
definition requires (i) a fear, (ii) that is well-founded, (iii) of persecution, (iv) based on
reasons of race, religion, nationality, membership in a particular social group, or political
opinion. Only if those strict requirements set forth in the definition are met, especially

18 Ibid.

19 Ibid.

20 Although there is ambiguity as to the number asylum seekers in this category but it is one of the
factors of migration

21 Hereafter it will be called Refugee Convention

22 Karen Elizabeth McNamara, Conceptualizing Discourses on Environmental Refugees at the

United Nations, Population and Environment, Vol. 29, No. 1 (Sep., 2007), pp. 12-24

23 ibid

24 Art 1 of refugee convention

regarding persecution based on one of the five allowable grounds, will those fleeing be
afforded refuge in a host country25. Important obstacles standing in the way of considering
environmental harms as fear of persecution are

1. such harm must extend to the extreme

2. it must extend to the violation of Human Rights
3. harm must inflicted by agents responsible for the environmental event26

It might be easy to identify if the environmental disruption is because of the construction of

development projects by the state or companies 27. The definition requires the environmental
refugees to be outside and unprotected by own country. This would definitely exclude
Environmental refugees from definition as level of protection provided by the government
could vary depending upon its capability. So from reasons Environmental refugees are not
protected directly but rather indirectly if they are at the same time convention refugees
because environmental harm was used as persecution method.

Refugee protection at regional level

Relevant instruments are present in Africa, Asia and Latin America in which the ground for
entailing refugee protection is events seriously disturbing public order Unlike Refugee
Convention refugee definition which excludes environmental refugee, regional convention
like OAU has extended definition which is based on practical response to the large scale
displacement rather than theoretical.

1. The 1969 OAU CONVENTION

There is debate among authors whether environmental disruption affects public order
especially by affecting public health and security. The public security and public health is a
matter of maintenance of law and order even though environmental disruptions could be
included if it extends to severity threshold which results in disorder detriment to the

25 Sven Pfeiffer, Environmental Refugees: How To Ensure Adequate Legal Protection,(28 Feb 2017
10:40 AM)
https://www.academia.edu/1102742/Environmental_Refugees_How_to_ensure_adequate_legal_prote
ction

26 supra at 23

27 Ibid.
population.28 In general environmental disruptions are excluded from the public order ground
because (i) meaning of public order includes human activities 29 and (ii) other grounds
included in the extended definition are man mad like external aggression, occupation and
foreign domination.30 So disruption of environment cannot be included in the ambit of public
order. Even though African States without relying upon the provisions of Convention provide
assistance to the environmentally displaced persons who migrated to another country.31 In the
light above arguments it can be concluded that African States do not plan to extend the
definition of refugee to extend environmental refugee.

2. The 1984 Cartagena Declaration and the 2001 Bangkok Principles

Unlike OAU Bangkok Principles is legally non-binding document. The 2001 Bangkok
Principle is amended document adopted by the member States of Asian-African Legal
consultative organisations.32 The final text of the amended Bangkok Principles adopted the
threshold ground in the OAU and now it is the exact replica of OAU.

Similarly Cartagena Declaration which is adopted by few Latin American States codified the
definition of refugee what it considers to be fit in its region. Even Cartagena Declaration has
ignored environmental refugees in their definition of refugee.

In neither States, environmental refugee has been considered in the definition of the refugee.
The interpretation of the extended definition of the refugee and its application in the scenario
shows that the environmental refugees are likely to be excluded from the legal status of any
region.

International Human rights (IHR)

28 Mandal, Protection Mechanisms Outside of the 1951 Convention, UNHCR, Geneva, 2005, p. 44

29 See Rankin, Extending the limits or narrowing the scope? Deconstructing the OAU refugee
definition thirty years on, UNHCR, 2005

30supra at 27

31 Edwards, Refugee Status Determination in Africa, AJICL 2(2006), p. 227.

32 supra at 22
The non-refoulement33 obligation under IHR prohibits the return of alien to a risk of torture or
inhumane treatment. Thus environmental refugees can benefit from non-refoulement if there
situation is recognised as an arbitrary deprivation of life or any other inhumane treatment.
However, threat to life of environmental refugee emerges from the environmental disruptions
which cannot be responsible for violation of human rights. This factor affects adversely the
intention of the states to fulfil obligations to protect and secure human rights. 34 Further the
inhumane treatment requires the presence of state official. 35 So non-refoulement requires a
risk of human rights violations for which state of destination might be directly or indirectly
responsible and it would not be sufficient to establish a risk of harm from environmental
factors which does not engage state responsibility.

International Standard

TUVALU

Recently, the international community has been particularly concerned about the fate of the
inhabitants of Tuvalu Island, an island nation located in the Pacific Ocean halfway between
Hawaii and Australia, threatened by sea level rise.36 Realizing the condition people of Tuvalu
the Prime Minister requested environmental refugee status for its citizens from both Australia
and New Zealand.37 New Zealand has responded to the plea by allowing seventy-five
Tuvaluans to relocate annually to their country, but Australia has not made any such offer.38
By considering the population of Tuvalu, it would take many years to relocate its population.
The solution was not enough to help the island.

33 Non-refoulement is a concept which prohibits States from returning a refugee or asylum seeker to
territories where there is a risk that his or her life or freedom would be threatened on account of race,
religion, nationality, membership of a particular social group, or political opinion

34 Gilbert, Environmental Degradation as a Threat to Life: A Question of Justice?, TCLR pp. 81-97
(2003)

35 Article 16(1), CAT.

36 Ibid supra at 11

37 Ibid supra at 5

38 Ibid supra at 5
USA

USA enacted Immigration Act 1990 taking into consideration the need to rehabilitate
population affected due to natural disaster of unparalled proportion. 39 This provision provided
temporary protected Status (TPS) which was based on purely discretionary decision. At the
present time, the United States has granted TPS to inhabitants of Montserrat, Honduras, and
Nicaragua due to environmental disasters that have substantially disrupted living conditions,
as a result of which those nations were unable, temporarily, to handle adequately the return of
their nationals. TPS reflects the international obligation of non-refoulement, protecting
persons who have entered the United States and who would face life threatening
circumstances if they returned home.

EUROPE

Rather than creating new obligations incumbent on member states, the Directive on
Subsidiary Protection clarifies and codifies existing international and community obligations
and practices. Thus, the directive appears to be of limited interest for environmentally-
displaced persons, until now overlooked in present instruments. Nonetheless, the expectation
of a forthcoming European policy specifically dealing with the issue is not senseless. Firstly,
the Directive on Subsidiary Protection provides for minimum standards on complementary
protection but does not prevent states from according more favorable conditions, leaving
certain points entirely to the discretion of member states. Thus, the European Council on
Refugees and Exiles advocates for lobbying national decision makers to implement the
directive in a way which is conducive to higher standards or provides for necessary legal and
other safeguards. As far as environmentally-displaced persons are concerned, however, an
extensive interpretation of the directive may not reasonably include this category of displaced
persons.40

INDIA

The Indian Constitution guarantees sure elementary freedoms to all persons and not simply to
Indian citizens. Hence, persons who flee their country of origin and request asylum in India

39 Immigration Act of 1990

40 Ibid supra at 5
have the protection of these elementary rights, independent of the necessity for any
recognition by the govt. of India or by the other international body just like the UNHCR.

The judiciary has a awfully vital role in protective refugees. Court orders have stuffed
legislative gaps and in several cases have provided humanitarian protection to refugees.
Moreover, Indian courts have allowed refugees and intervening NGOs to file cases before
them. What is more, the courts have understood provisions of the Constitution, existing laws
and, within the absence of municipal law, provisions of international law to supply protection
to refugees and asylum seekers.
Indian courts have determined during a range of cases that the constitutional protection of life
and liberty should be provided to refugees. It has been estimated that twenty million
individuals are annually migrating from Bangladesh to India. The future effects of climate
change are probably to extend the flow of population from Bangladesh to India. The present
studies indicate that climate change may induce a far larger migration from Bangladesh to
India within the future. it should place extra pressures on the resource base of area unit as
they'll migrate in India and threaten the livelihoods of individuals who are presently living
there.41 Even country like India provides basic constitutional rights to the refugees even
though it is not a party to Refugee Convention. Due to the large number of such
environmental refugees and limited resources in a developing country like India bars it to
provide assistance to every such refugee.42

CONCLUSION

The existence of environmental refugees cant be ignored by the international community.

The failure of international law to address this issue is of great concern. However, there are
still vital gaps in many areas. First, the international community is nevertheless to recognize
this new class of migrants. Theres no appropriate definition and also the standing of climate
refugees because of the distinct meaning the term refugees carry beneath law of nations.
Second, there are still gaps in perceiving how climate change can be root reason behind
migration. Third, even though there's recognition of climate refugees, who is going to take
the responsibility to provide protection and assistance? Fourth, a lot of emphasis has been

41 Architesh Panda, Climate Refugees: Implications for India, Economic and Political Weekly, Vol.
45, No. 20 (MAY 15-21, 2010), pp. 76-79

42 Renaud, F, J J Bogardi, Control, Adapt or Flee: How to Face Environmental Migration,

Intersections, www.ehs.unu.edu/file.php?id=259
given to international migration owing to climate change. We want to recognize the matter
and appropriate methods and measures to help the people displaced by climate change ought
to be devised to effectively affect the problem.