By Astha Pandey
Astha Pandey is an undergraduate law student at Maharashtra National Law University, Nagpur (India).
In January 2020, the United Nations Human Rights Committee ruled that it is unlawful for states to deport people seeking asylum on the ground of threat to life due to climate crisis. This judgment was a result of a case brought by Ioane Teitiota, a national of Kiribati, against the government of New Zealand in February 2016 after his claim of asylum as a ‘climate refugee’ was denied by New Zealand. The ruling highlights that countries have a legal responsibility to protect lives threatened by climate change.
Climate change is worsening both quality of life and the environment. The world is witnessing catastrophic changes: wildfires along the West Coast in the United States, Australia and Brazil, floods in India and Bangladesh, overwhelming droughts in Africa, and rising sea levels threatening the existence of several island nations. These climate change induced disasters are leading to a bigger issue of climate change displacement. In the past few weeks itself, several thousands of people from California, Oregon had to flee from their homeland in the hope of returning when the land cools down. The populations forced to migrate due to effects of climate change are likely to face displacement for protracted, or even for indefinite periods of time opening a pandora’s box as there is no international mechanism for determining the status of those permanently displaced.
International Law and ‘climate refugees’
The 1951 Convention Relating to the Status of Refugees defines a refugee as a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of their origin and are unwilling to return due to such fear (Article I (A) (2) ). The 1951 Refugee Convention was drafted in the post-World War II era and provides a very restricted meaning to the term ‘refugee’. The Kampala Convention, a regional African treaty, recognises persons fleeing conditions of violence and natural or man-made disasters; however, it does not give a legal definition of ‘climate refugees’ or those internationally displaced due to climate change. This lack of an international legal framework for climate change induced displacement has posed many problems for several environmentally displaced persons.
The Nansen Conference on Climate Change and Displacement was an important step in creating a closer dialogue between humanitarian actors, climate change scientists and policy makers. The Nansen Principles are a result of this recognition of humanitarian consequences of climate change induced movements by the international community for the first time. These principles provide a framework for tackling disaster induced displacement by identifying key areas and relevant actors. Neither the 1992 United Nations Framework Convention on Climate Change (UNFCCC) nor its Kyoto Protocol of 1997 address climate change induced movement or displacement. It was in 2010 that the Cancun Agreement for the first time led all the parties to undertake “measures to enhance understanding, coordination and cooperation related to national, regional and international climate change induced displacement, migration and planned relocation.” Further, in 2015, the human right mechanisms and climate justice were included in the Paris Agreement. It also recognizes migrants as a separate category.
In 2018, the United Nations held an intergovernmental conference to adopt the Global Compact for Safe, Orderly, and Regular Migration. It talks about climate induced migration and aims to ease the source of migration and improve the standard of living for migrants. It has gathered signatures from 152 countries but lacks support of some of the most powerful states in the world.
Responsibility to Protect (R2P)
The principle of R2P was first introduced in the 2001 Report of the International Commission on Intervention and State Sovereignty (ICISS) convened by the government of Canada in the aftermath of Rwanda and Kosovo conflicts. It was adopted in the 2005 World Summit to put an end to violence arising from genocide, war crimes, ethnic cleansing, and crimes against humanity. In 2009, a report on “Implementing the Responsibility to Protect” was released, containing a three-pillar strategy which focused on: the protection responsibilities of the state, international assistance & capacity-building, and timely & decisive response. R2P has gained strength internationally in a very short span of time.
The three pillars of R2P consider the potential sources that can lead to mass crimes and commit to help the communities facing unrest or conflicts. Although climate change is not a direct cause of atrocious crimes, it can certainly aggravate and increase the severity of effects of such crimes. It is already exacerbating the shortage in drinking water supplies, agricultural activities, and displays potential to disturb existing supplies. Soon it is going to take over other factors leading to economic instability, extreme poverty, scarcity in resources and increase in disasters, snowballing the risk of mass atrocities. However, in 2009, the then United Nations Secretary-General Ban Ki-moon warned against applying R2P to climate migrations or internally displaced persons (IDPs) as it could lead member states to withdraw their support for the principle as agreed in the 2005 World Summit Outcome Document, restricting it to the specified crimes. Since then there have been several arguments to expand the emerging doctrine of R2P to include other factors that can result in extinction of states.
R2P advocates argue that mass crimes result in emergency situations and forced displacements at large scale. While atrocious crimes are a major cause of humanitarian situations, they are not the only one. Many natural disasters and climate change induced crises uproot millions every year and create protection problems that necessitate the need for assistance. These act as a threat multiplier to mass atrocity crimes. The conclusion of R2P advocates to separate natural disaster induced humanitarian situations out of the principle is a decision that needs reconsideration. Today there are several examples where human rights violations and crimes against humanity are being committed in the wake of natural disasters. It has become easier to draw a parallel between mass crimes and climate change, as both threaten the fundamental rights of entire populations leading to their victims needing international protection.
 TIME, Climate Refugees Cannot Be Forced Home, U.N. Panel Says in Landmark Ruling (October 8, 2020, 5:00pm), https://time.com/5768347/climate-refugees-un-ioane-teitiota/.
 UN Human Rights Committee, Views adopted under article 5 (4) of the Optional Protocol, concerning communication No. 2728/2016 (communicated by Ioane Teitiota), https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f127%2fD%2f2728%2f2016&Lang=en.
 UNHCR, Climate Change and Disaster Displacement, https://www.unhcr.org/climate-change-and-disasters.html.
 The New York Times, ‘It Is Apocalyptic’: Fear and Destruction Grip the West Coast, (October 8, 2020, 5:00pm), https://www.nytimes.com/2020/09/13/us/oregon-wildfires-california-washington-map.html.
 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), https://au.int/en/treaties/african-union-convention-protection-and-assistance-internally-displaced-persons-africa.
 Norwegian Refugee Council, The Nansen Conference Climate Change and Displacement in the 21st Century, (Oslo, Norway, June 5-7, 2011), https://www.unhcr.org/4ea969729.pdf.
 The Nansen Principles, https://www.regjeringen.no/globalassets/upload/ud/
 Cancun Climate Change Adaptation Framework Decision - adopted as part of the 2010 Cancun Agreements of COP16, decision 1/CP.16 paragraph 14 (f), https://unfccc.int/resource/
 Adoption of Paris Agreement-adopted in 2015 in COP21, https://unfccc.int/files/essential_background/
 Global Compact for Safe, Orderly and Regular Migration (GCM), Final Draft, (11 July 2018), http://undocs.org/en/A/CONF.231/3.
 UN General Assembly, Resolution adopted by the General Assembly on 16 September 2005, A/60/L.1, 2005 World Summit Outcome, https://www.un.org/en/development/desa/population/migration/
 UN General Assembly, Report of the UN Secretary-General, Implementing the responsibility to protect, A/63/677, http://undocs.org/A/63/677.
 Brookings Institution, Reconciling R2P with IDP Protection, https://www.brookings.edu/wp-content/uploads/2016/06/0325_internal_displacement_cohen.pdf
 Implementing the Responsibility to Protect: Report of the Secretary-General, U.N. Doc. A/63/677 (Jan. 12, 2009), http://globalr2p.org/pdf/SGR2PEng.pdf.
 ReliefWeb, Atrocity Alert No. 173: Climate Change and the Responsibility to Protect, (October 15, 2020, 6:30pm), https://reliefweb.int/report/world/atrocity-alert-no-173-climate-change-and-responsibility-protect.
 FORD, S. (2010). Is the Failure to Respond Appropriately to a Natural Disaster a Crime Against Humanity? The Responsibility to Protect and Individual Criminal Responsibility in the Aftermath of Cyclone Nargis, Denver Journal of International Law and Policy, Vol. 38.
The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.