Presently, the whole world is experiencing the nascent environmental effects of the development that it underwent in the last century, especially post-industrial revolution. The climate is undergoing unprecedented changes, and the after effects of the same would create a logistical, as well as, economic nightmare for the whole world. As per the Intergovernmental Panel on Climate Change, climate change would be the cause of an increased intensity of natural disasters such as droughts, floods, cyclonic storms, and further, would lead to desertification, salinization of coastal soils, erosion, land degradation, and sea-level rise. This would result in lower crop yields, diminishing food production, lack of clean and portable water supply, reduction in arable land, and thus, cause an adverse impact on human beings..
THE PRINCIPLE OF NON-REFOULEMENT
The word ‘Refouler’ denotes ‘to drive back or to repel’, usually someone who is considered an enemy, per se, or an ‘other’. This is where the concept of non-Refoulement is derived.
As a principle, non-Refoulement is the a very important part of international humanitarian law. According to non-Refoulement, the states are under an obligation to not send the refugees back to the place from where they have originated and travelled, fleeing their homes to avoid severe violence and human rights violations happening there. The very purpose of this principle is to protect the said refugees from persecution and provide a safe haven to them on grounds of human sympathy and decency.
Non-Refoulement, as a principle of international law, did not come into place until the 1930s. It gained more traction during the World War II, where a lot of refugees, mainly Jews, were fleeing the Nazi occupied territories to avoid getting killed.
Subsequently, the principle was adopted, as a practice, by many states, who considered it the very basis of protection of refugees, and hence, an intrinsic part of international humanitarian law. Henceforth, as the international community adopted it more and more frequently, it became a common state practice.
As per Article 38(1)(b) of the Rome Statute (Statute of the International Court of Justice), international custom is recognised as a source of law for referring to in reaching a decision. Consistent practice of a norm by the states and opinio juris are the basis for the said norm to be recognised as a customary international law. In this context, the principle of non-Refoulement can be said to be a customary international law, as a majority of states have adopted and practiced it.
Article 33 of the Convention relating to the Status of Refugees (1951) has adopted the principle of non-Refoulement in its formal shape. It states that-
- “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
- The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
A simple reading of Article 33 is enough to make one understand that the core of this enactment is to protect human life, specifically, that of a displaced one, i.e., a refugee. However, the same Article also provides the exception to the situation, wherein a person may not be given refuge, namely, where he/she poses a threat to the host country and there are reasonable means to prove the same.
Some other instruments of International Law, where non-Refoulement has been incorporated, expressly or impliedly, are as follows.
Article 7, The International Covenant on Civil and Political Rights (1976)–
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
Article 3, The Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (1987)-
- ‘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.
- For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.’
NON-REFOULEMENT AND CLIMATE REFUGEES: THE ISSUES INVOLVED
The established principle argues that if a person is has felt a grave threat to his life in his home country due to any of the social or political constructs as mentioned in Article 33 of the Convention relating to the Status of Refugees (1951), he or she ought to be given asylum and protection. The issue of climate change creates a unique situation, where the causes of such a change have been proven to be anthropogenic. Human beings have caused a shift in the climatic conditions of whole regions on the Earth, and it in turn would be the cause of suffering for the human beings living in those regions. It’s essentially a humanitarian crisis and a human rights issue.
If viewed from the lens of human rights, the displacement of people due to climate change is a political issue as well. Hence, it needs to be interpreted with the same principles of international law as the other human rights and related issues. If a country was submerged due to sea level rise (an aftermath of climate change), there would be no hope for its citizens to ever go back to their homes. It would be a life threatening situation, and the displaced people would have to seek refuge elsewhere. Since climate change is a human-caused phenomenon, and is a risk multiplier event for lower economic groups, or even for less developed countries, it should be viewed as a case for the application of the principle of non-refoulement.
Further, many of the international legal instruments currently at our disposal were formulated years ago, and hence, do not consider what the present day issues may be, one of them being climate change. There is a distinct non-convergence when it comes to international instruments or conventions and the issue of climate related displacement of people.
In a study, “a sample of 65 documents selected from 294 relevant United Nations (UN) General Assembly Resolutions, Treaties and Conventions, other reports and documents, 23% were found to mention climate change and 25% were on issues referring to migrants and refugees. However, only 6% of them established a connection between the two.”
Hence, there is dearth of discourse on the issue, which is already something many people in lower lying regions and islands nations of the world are facing today. Further, pinning responsibility for climate change is one of the most complex issues, which clearly needs more international deliberation.
If a group of people suffer the effects of climate change in a third world/developing country, the causes of which originated in a first world/developed country, then who would be liable for taking the responsibility of their displacement? In the usual cases where the people leave their homes under threat to life, the threat is direct and from a certain particular group of people, or even the state itself. In the displacement due to climate change, it is hard to discern who caused the aftermath of the climate change, or who contributed the most to it.
It could be a common responsibility, as per the principle of Common But Differentiated Responsibility (CBDR) as given in the United Nations Framework Convention on Climate Change. However, the principle mainly concerns whole countries, wherein the responsibility for tackling climate change is pinned more on the developed nations rather than the developing ones. The displacement of people due to climate change would mostly be an issue concerning a set of individuals. There has been no substantial international discourse on it thus far.
The lack of international discourse on it may be a symptom of the fact that the worst affected people from climate change would be in the developing countries, mostly with small economies, whereas the international discourse is steered mostly by the developed countries with strong economies. Since international law is most affected by political influences, this would also reflect in the case of climate refugees.
Lastly, the main difficulty in pinning the blame on a climatic disaster related to climate change is the fact that other natural disasters also occur all over the world, and the displacement caused by them is not dissimilar to climate change related displacement. To differentiate between the two would be a monumental task, and often the difference wouldn’t be discernible. “Restricting protection to those affected by climate change issues would leave out others affected by geo-environmental phenomena and changes (whether anthropogenic or not), which could be discussed legally in terms of responsibilities but not in terms of human rights.”
The displacement of people due to climate change ought to be inherently be encompassed within the principle of non-Refoulement. The threat to the life of the people is caused by the consequences of the climate change, which in turn is the consequence of anthropogenic activities.
Perhaps, the definition of the principle of non-refoulement, as understood by the above-mentioned Conventions and Covenants, needs to be updated, considering the developments with respect to climate change in the last decade or so. Since climate change was not even known to be a phenomenon back in the time when the principle of non-refoulement was accepted into the customary international law, it needs to be given a proper consideration now, since it would affect several peoples all over the planet, creating a big refugee problem.
- Corendea, C. (2016). Hybrid Legal Approaches Towards Climate Change: Concepts, Mechanisms and Implementation. Ann. Surv. Int’l & Comp. L., 21, 29.
- Fernández, M. J. (2015). Refugees, climate change and international law. Forced Migration Review, (49), 42.
- Pachauri, R. K., & Reisinger, A. (2007). IPCC fourth assessment report. IPCC, Geneva, 2007.
About the author
Jitesh Kadian has done BALLB Hons. from Faculty of Law, MDU, Rohtak, Then further went to LLM in Environment and Natural Resources Law from TERI School of Advanced Studies, New Delhi.
At present he is a Research Scholar at the Department of Law, Jagannath University, Haryana researching in the field of environmental law.