The Refugee Convention[1], born out of the crucible of post-World War II displacement, stands as a testament to humanity’s commitment to shield the persecuted. Crafted with meticulous foresight and compassion, this international instrument epitomizes a collective determination to provide sanctuary for those fleeing persecution. As the global landscape evolves, presenting novel challenges, the time has come to expand the Convention’s embrace to include a burgeoning category of displaced individuals – climate refugees. This article advocates for the inclusion of people displaced by climate change, or climate refugees – as they are commonly known, within the ambit or the Refugee Convention[2] and employs legal arguments to substantiate its proposition.
The Refugee Convention: A Pillar of Protection
Enacted in 1951 and later fortified by the 1967 Protocol[3], the Refugee Convention[4] remains a lodestar for nations navigating the complex terrain of refugee protection. It defines a refugee as an individual with a well-founded fear of persecution due to race, religion, nationality, membership in a particular social group, or political opinion. This definition, meticulously crafted by visionary framers, reflects a profound understanding of the varied facets of persecution that could force individuals to seek refuge across borders. The Convention, steeped in the principles of compassion and justice, also incorporates the cornerstone of non-refoulement – the prohibition of returning refugees to places where their life or freedom would be threatened. This robust protection mechanism underscores the humanitarian ethos driving the Convention’s genesis. However, in the face of the existential threat posed by climate change, a critical examination of the Convention’s purview is imperative.
Climate Refugees: An Unprecedented Challenge
The 21st century unfolds as an era defined by the perils of climate change, casting a looming shadow over the most vulnerable communities worldwide. The conventional understanding of persecution, while rooted in experiences of direct harm inflicted by state actors, now confronts a new reality. Climate change, with its cascading impacts on ecosystems, economies, and societies, necessitates a paradigm shift in our conceptualization of persecution. As rising sea levels swallow coastlines, extreme weather events displace entire populations, and resource scarcity triggers conflicts, a silent crisis emerges. This crisis, borne on the winds of climate change, propels individuals from their homes, robbing them not only of their land but also of their livelihoods, safety, and, ultimately, their dignity. It is within this crucible of environmental upheaval that the concept of climate refugees takes root.
Understanding Persecution in the Context of Climate Change
Traditional notions of persecution, deeply rooted in direct harm by state actors, require a paradigm shift. Acknowledging the UNHCR’s stance[5] that a general state of insecurity in the country of origin can instill a well-founded fear of persecution, it becomes apparent that persecution must be reinterpreted to include indirect and systemic harm caused by the relentless force of climate change. Climate-induced phenomena, such as rising sea levels, extreme weather events, and resource scarcity, create a web of systemic challenges that significantly affect the livelihoods and safety of communities.[6]
The impacts of climate change extend beyond immediate physical harm, delving into the realms of economic destabilization, food insecurity, and displacement. Vulnerable communities find themselves grappling not only with the visible consequences of environmental shifts but also with the ensuing socio-economic and political disruptions. In this context, the concept of persecution must be expanded to encapsulate the broader range of adversities inflicted upon communities by the changing climate.
Defining ‘Particular Social Group’ for Climate Refugees
The conventional definition of a ‘particular social group’ must undergo a metamorphosis to encompass groups formed by involuntary associations due to innate characteristics or shared vulnerabilities. Adverse impacts of climate change create involuntary associations among affected individuals, forging a ‘particular social group’ united by the burdens of environmental upheaval.
Climate-induced displacement often leads to the formation of communities bound by shared experiences, vulnerabilities, and the challenges of adapting to new environments. These groups, though not defined by traditional criteria, represent a unique social category emerging from the shared adversity of climate-induced displacement. As such, expanding the understanding of ‘particular social group’ to include climate-affected communities aligns with the humanitarian spirit of the Refugee Convention[7], acknowledging the distinctive challenges faced by these groups.
Legal Considerations and International Obligations
The legal framework, underscored by reports from the Federal Environment Agency of Germany, accentuates state obligations to welcome international environmental refugees. The UNHCR guidelines provide robust support to the notion that a valid refugee claim arises when the adverse effects of climate change seamlessly intersect with conflict and violence.
The evolving nature of global challenges necessitates a reassessment of international legal frameworks to address the complexities of climate-induced displacement. States must recognize their responsibility to protect vulnerable populations facing persecution as a result of environmental upheavals. This recognition aligns with the principles of international law, emphasizing the interconnectedness of environmental rights and human rights.
Climate Conditions and Non-State Persecution
The intricate interplay between climate conditions and conflict often propels non-state actors to perpetrate acts amounting to persecution. Recognized as a valid ground for persecution under the Refugee Convention and various case laws, this dynamic underscores the need for a holistic perspective on persecution.
Non-state persecution in the context of climate change encompasses a range of actions by non-governmental entities or groups that contribute to the persecution of affected individuals. This could include land disputes, resource conflicts, or violence instigated by non-state actors in the wake of environmental crises. The Refugee Convention[8], when interpreted expansively, accommodates these nuances, ensuring that individuals facing persecution, irrespective of the source, find protection under international law.
Right to Life and Environmental Rights
The fundamental right to life[9] obliges states to shield refugees from threats or patterns of violence. An expansive interpretation extends this right to include the right to a clean and healthy environment, acknowledging the symbiotic relationship between environmental rights and the right to life.
Climate change, with its cascading effects on ecosystems and communities, poses a direct threat to the right to life. Rising sea levels, extreme weather events, and environmental degradation contribute to the displacement of populations, exposing them to severe risks and challenges to survival. Recognizing the right to a clean and healthy environment as an integral facet of the right to life reinforces the interconnectedness of human rights and environmental protection.
In the landmark case of Ioane Teitiota v. New Zealand[10], the UNHRC demonstrated a groundbreaking acknowledgment of potential human rights violations occurring in regions ravaged by climate change. This recognition spans the right to life and protection from torture or cruel, inhuman, or degrading treatment, asserting that repatriation should not occur when a foreseeable risk of severe harm looms large.
The UNHRC’s decision in the Teitiota case[11] establishes a precedent for recognizing the unique challenges faced by climate refugees. It underscores the need for an expansive interpretation of international law to encompass the evolving nature of global challenges. By acknowledging the potential harm and human rights violations associated with climate-induced displacement, the UNHRC sets a crucial precedent for recognizing the vulnerability of affected populations.
Interpreting the Refugee Convention and Legal Principles
Guided by the general rule of interpretation[12], treaties should be construed in good faith, considering their ordinary meaning, context, and purpose. The Refugee Convention’s preamble [13] underscores the importance of securing widest possible rights for refugees, thus paving the way for an inclusive approach.
Interpreting the Refugee Convention[14] in the context of climate-induced displacement requires an acknowledgment of the evolving nature of global challenges. The ordinary meaning of persecution, when applied in the context of climate change, extends beyond direct harm by state actors to encompass the wide-ranging impacts of environmental degradation. Contextually, the purpose of the Refugee Convention, rooted in protecting those facing persecution, necessitates an expansive interpretation that aligns with the contemporary understanding of displacement caused by climate change.
VCLT’s Supplementary Means of Interpretation
The VCLT[15] recognizes travaux préparatoires as a supplementary means of interpretation, unveiling nuances within treaty texts. A meticulous examination of the preparatory works of the Refugee Convention[16] indicates that the exclusion of certain grounds for granting refugee status is temporary, contingent on future UN decisions and resolutions.
The preparatory works of the Refugee Convention shed light on the framers’ intent to create a dynamic and adaptable framework that responds to evolving challenges. The temporary nature of exclusions suggests a foresight that contemplates the need to incorporate new grounds for refugee status in response to emerging global issues. Travaux préparatoires serve as a crucial tool for discerning this intent and guiding the interpretation of the Refugee Convention in light of contemporary challenges such as climate-induced displacement.
International Resolutions and Initiatives
Numerous UNGA resolutions and initiatives reverberate with an acknowledgment of the rights of individuals displaced by climate change. The New York Declaration of 2016[17], the 2018 Global Compact for Safe, Orderly and Regular Migration[18], and the UNFCC’s 24th Conference of Parties[19] converge to highlight climate change’s profound impact on global migration.
International resolutions and initiatives underscore the global consensus on recognizing the challenges posed by climate change and its consequences on migration. These instruments provide a framework for acknowledging the rights of climate refugees and emphasize the need for a collaborative, international response. The New York Declaration[20], in particular, recognizes the importance of sharing responsibilities and facilitating safe, orderly, and regular migration in the context of environmental challenges.
National Legislation and Regional Conventions
The proactive enactment of legislation by countries like Finland and Sweden exemplifies a commitment to protect those displaced due to climate change. Regional conventions, including the Cartagena Declaration[21] and the Organization of African Unity Refugee Convention[22], stand as testament to the recognition of the rights of climate-displaced individuals to secure refugee status.
National legislation addressing climate-induced displacement reflects a growing awareness of the need for legal frameworks to accommodate the unique circumstances of climate refugees. Countries recognizing the urgency of climate-related migration are taking proactive steps to ensure that individuals forced to flee due to environmental factors receive adequate protection. Regional conventions, endorsed by a significant number of states, demonstrate a collective commitment to addressing the challenges posed by climate-induced displacement within specific geographical contexts.
Conclusion
Incorporating climate refugees within the sanctified Refugee Convention aligns seamlessly with legal principles, international obligations, and the evolving understanding of persecution. As the ramifications of climate change intensify, the global community must embrace a proactive and inclusive approach, safeguarding the rights and dignity of those forcibly displaced by environmental challenges. The urgency of this call cannot be overstated in a world where environmental upheavals continue to shape the destinies of the most vulnerable among us.
Recognizing climate-induced displacement as a form of persecution under the Refugee Convention is not merely a legal imperative but a moral obligation. States, international organizations, and the legal community must collectively rise to the challenge, advocating for an inclusive interpretation of existing frameworks and the development of specialized instruments to address the complexities of climate-related migration. The plight of climate refugees demands a compassionate and forward-looking response, one that respects the sanctity of human rights in the face of an ever-changing climate landscape.
[1] Convention Relating to the Status of Refugees, 189 U.N.T.S. 137 (1951).
[2] Ibid.
[3] Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.
[4] Supra note 1.
[5] UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (April 2019).
[6] Evan D. G. Fraser, Assessing Vulnerability to Climate Change in Dryland Livelihood Systems: Conceptual Challenges and Interdisciplinary Solutions, 16 Ecology and Society (2011).
[7] Supra note 1.
[8] Supra note 1.
[9] International Covenant on Civil and Political Rights art. 7, Dec. 16, 1966, 999 U.N.T.S. 171.
[10] Ioane Teitiota v. New Zealand (advance unedited version), CCPR/C/127/D/2728/2016, U.N. Human Rights Committee (HRC), 7 January 2020
[11] Ibid.
[12] Vienna Convention on the Law of Treaties art. 31, May 23, 1969, 1155 U.N.T.S. 331.
[13] Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137, Preamble.
[14] Supra note 1.
[15] Vienna Convention on the Law of Treaties art. 32, May 23, 1969, 1155 U.N.T.S. 331.
[16] Paul Weis, The Refugee Convention, 1951: The Travaux préparatoires analysed with a Commentary (1990), available at https://www.refworld.org/docid/53e1dd114.html (last visited Dec. 25, 2023).
[17] UNGA, New York Declaration for Refugees and Migrants, A/RES/71/1 (Sept. 19, 2016).
[18] G.A. Res. 73/195, Global Compact for Safe, Orderly and Regular Migration, U.N. Doc. A/RES/73/195 (Dec. 19, 2018).
[19] UNFCC, Report of the Conference of the Parties on its 24th session, U.N. Doc. FCCC/CP/2018/10/Add.1 (Feb. 26, 2019).
[20] Supra note 17.
[21] Organization of American States, Cartagena Declaration on Refugees, OAS/CAJP/PC/Doc. 2/96 Rev. 1 (Sept. 22, 1996).
[22] Organization of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa, OAU Doc. CAB/LEG/24.9/49 (Sept. 10, 1969).
Author: Suhana
Juris Centre 