INTRODUCTION

Status of refugees all over the world is quite precarious in many ways. They are used to be
treated as un-welcome aliens in most of the countries. There are legal as well as socioeconomic, political and psychological reasons for such situation. From the lawyers point of
view, status of a person, deprived of national protection, is anomalous A stateless person
and this applies equally to refugees who can be compared to a vessel on the open sea, not
sailing under any flag. Absence of nationality or protection by a government or sovereign
state of the refugees creates legal difficulties. They often lack, proper documentation on their
identity and credentials or are unable to comply with the formalities which are required from
them, being aliens, for the enjoyment of certain rights in the country of their refuge. Their
very position due to uncertainty of their nationality status, financial & health status, ethnicity,
religion, ideological orientation mode of livelihood and even country of origin, are bound to
create additional legal problems. Intentional discrimination or unintentional discrimination
due to limitation of applicable laws in the host country is frequently the consequence.
Social, political and psychological factors add to this situation. Refugees are often destitute;
they live in difficult financial and psychological conditions. They are open to typical
suspicions. Therefore intentional discrimination of the refugees is not infrequent.
However the case of climate change refugees is worse. They dont even have the refugee
staus which could have been used by them to save their lives. Thus they are forced to run
helter-scelter to save their lives.

The Legal rights of RefugeesThe Convention relating to the Status of Refugees was adopted in Geneva on July 28, 1951,
with the aim of regulating the legal status of refugees in far greater detail than the previous
instruments and thus, established within the contracting states a uniform legal status for the
existing groups of "United Nations protected persons."
The Convention defined refugees in Article 1 as:
Owing to 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 his
nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection
of that country; or who, not having a nationality and being outside the country of his former
habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to
return to it.1
Also the Office of the United Nations High Commissioner for Refugees (UNHCR) was
entrusted the duty to exercise the functions of the charter. The competence of UNHCR
extends to all refugees who are considered as being in need of international protection.
The convention provides explicitly in Article 35:
1. The Contracting States undertake to co-operate with the Office of the United Nations High
Commissioner for Refugees (UNHCR), or any other agency of the United Nations which may
succeed it, in the exercise of its functions, and shall in particular facilitate its duty of
supervising the application of the provisions of this Convention.2
Although international agencies created for the protection of refugees, have no means of
enforcement at their disposal, their establishment marked a new method of international
supervision of the rights and interests of individuals.
Admission and Expulsion
The first need of a refugee when he crosses the frontier of his country of origin is that he
should not be forcibly returned thither. After the Second World War, when the movement of
refugees from the countries of Eastern Europe began, first asylum was not normally refused
to persons who appeared to be bona fide refugees; nor were persons forcibly repatriated to
those countries from which they have escaped, whether as forced laborers in Germany, or
otherwise. However most countries have strict border rules and thus prosecute or send back
individuals illegally entering their borders.

1 U.N., Convention Relating to the Status of Refugees , Oct 10th,2013,

http://www.unhcr.org/496365eb2.pdf
2 U.N., Convention Relating to the Status of Refugees , Oct 10 th,2013,
http://www.unhcr.org/496365eb2.pdf

The Convention of July 28, 1951, Relating to the Status of Refugees provides in this
connection:
Article 31
1. The Contracting States shall not impose penalties, on account of their illegal entry or
presence, on refugees who, coming directly from a territory where their life or freedom
was threatened in the sense of article 1, enter or are present in their territory without
authorization, provided they present themselves without delay to the authorities and
show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions
other than those which are necessary and such restrictions shall only be applied until
their status in the country is regularized or they obtain admission into another country.
The Contracting States shall allow such refugees a reasonable period and all the
necessary facilities to obtain admission into another country.
Article 32
1. The Contracting States shall not expel a refugee lawfully in their territory saves on
grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in
accordance with due process of law. Except where compelling reasons of national
security otherwise require, the refugee shall be allowed to submit evidence to clear
himself, and to appeal to and be represented for the purpose before competent authority
or a person or persons specially designated by the competent authority.
3. The Contracting States shall allow such a refugee a reasonable period within which to
seek legal admission into another country. The Contracting States reserve the right to
apply during that period such internal measures as they may deem necessary.
Article 33
1. 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.
2. 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.3
Thus it would seem that the principle that bona fide refugees should not be returned or
expelled to a country where their life or freedom would be threatened for political, religious
or racial reasons, is indeed widely, if not universally, recognized today. It applies equally to
persons whose residence in the territory has been authorized, and to illegal entrants. It seems
justified to deduce therefrom a duty of states to refrain from action which may lead to the
return of a refugee to a country where he may become the victim of persecution; but it seems
3U.N., Convention Relating to the Status of Refugees , Oct 10 th,2013,
http://www.unhcr.org/496365eb2.pdf

difficult to reconcile such a rule with the doctrine of the unlimited right of states to regulate
the admission of aliens. It is believed, however that this right states that countries should not
refuse admission to a bona fide refugee where such a refusal would expose him to
persecution endangering his life or freedom, i.e., primarily at the frontiers of his country of
origin. This does not imply that the admitting state should necessarily permit the continued
residence of the refugee once admitted. The admitting state may, subject to its treaty
obligations, and sometimes does, expel him to another country.4
International Human Rights Law is embodied in the UN Charter itself, in the Universal
Declaration of Human Rights and in the two International Covenants, as well as in UN
resolutions, customs, judicial decisions and expert opinion. Refugees are never specifically
mentioned in this body of law, although there is the inclusion that all humanity, without
discrimination, is the beneficiary of international human rights protection.
The UN Human Rights Covenant provides for a committee to receive complaints as well. In
this manner, a refugee acting as a citizen of his own country may petition against the
human rights violations in his home country.

CHAPTER III: CLIMATE CHANGE AFFECTED REFUGEES

4Paul Weiss, The International Protection of Refugees, Vol. 48, The American
Journal of International Law, pg. 193-221, ( 1954)

What we are now seeing are more and more people that are forced to flee because of lack
of water, because of lack of food, because of extreme poverty and many of these situations
are enhanced by climate change.
-Antnio Gutteres, UNHCR
Global warming affects the life of more and more people to the extent that they have to leave
their homes either temporarily or permanently and as a result they become environmental
refugees. However, unlike victims of political upheaval, who are protected by international
law and can obtain financial and medical aid, food and shelter through governments and
international organizations, it is unclear what conventions and policies protect people
displaced by extreme weather events. This is the problem that the international community has
to address urgently.5
A major problem is that until now, even the United Nations has no official status for those
who are environmental refugees. They do not acknowledge that the affected people are
refugees seeking asylum. Since those affected are called environmental migrants, the legal
status of those who should be refugees is undermined to the extent that they are not
officially obliged to be given asylum. Thus the experts from the United Nations University's
Institute for Environment and Human Security (UNU-EHS) stressed that there is an urgent
need to define a new category of refugees.4
Prof. Hans van Ginkel of the UNU, further emphasizes that environment-related refugees
must be distinguished from economic migrants, who depart voluntarily to find a better life
but may return home.6
While the victims of sudden and highly-publicized natural disasters like the 2004 Asian
tsunami, the Pakistan floods in 2007 & 2010 and Hurricane Sandy in the USA benefit from
the generosity of the donors and governments, the circumstances which turn citizens into
environmental refugees often happen silently and gradually, far away from the limelight.7
One example of those silent catastrophes is the Gobi desert in China, which expands every
year by more than 10,000 square kilometers, threatening many villages and fertile soils The
melting of the perma-frost soil will affect the building ground of Siberia and other regions of
the world and in the UK, about 10 million people live in flood-risk areas.8

54 www.ehs.unu.edu/file/get/4033The Nansen Conference, Climate Change and

Displacement in the 21st Century (Oslo, Norway, June 5-7,2011), Oct 12, 2013,
http://d2530919.hosted213.servetheworld.no/expose/global/download.asp?
id=2280&fk=1633&thumb

6 http://www.ehs.unu.edu/article:130
7 http://www.ehs.unu.edu/article:130

As almost two billion people in the world today depend on the fragile ecosystems in arid and
semi-arid areas, and 90 percent of them live in the developing world, the effects of global
warming, mainly caused by the industrialized nations, hit the poorest nations most. Global
warming leads to environmental disasters like droughts and desertification which are
threatening livelihoods, crops and livestock. These are unlikely to survive in certain locations
if conditions become too hot and dry, or too cold and wet. This is leading to an increasing
number of people competing for a decreasing amount of resources. Environmental migration
thus has the potential to create conflicts with other communities.
U.N. Secretary General Ban Ki-moon for instance blames the ethnic and religious violence
in Darfur on global warming: The Darfur conflict began as an ecological crisis, arising at
least in part from climate change.9
As nations point fingers and blame to each other, nothing is being done to help the victims to
mitigate or adapt the effects of climate change. The islanders (who will be affected the most)
have not been successful in securing any form of relief or rescue, whether preventative or
humanitarian. Three characteristics of climate change make it unlike any other type of
environmental disaster that the world has faced to date. Firstly, the lack of consensus
regarding the mere existence and scientific causes of climate change often supports denials of
help to climate change victims. Also as it is a prospective disaster, present day preparations
and remedies may appear excessive or unnecessary. Secondly, since climate change entails
trans-boundary pollution, the global nature of the cause means that prevention cannot be
effective if undertaken by isolated parties or nations. Any serious efforts to curtail emissions
or to change behaviors cannot be truly successful without implicating the entire world.
Finally, climate change has a built-in disparate impact: those countries producing the most
harmful greenhouse gasses are usually the least affected by climate change disasters, while
those producing the least seem to bear the greater brunt of global warming harms. Moreover,
the victims of climate change, often small islands or poor nations, are frequently in the worst
position to adapt and mitigate the damages.10
.The term environmental refugee was first coined by Essam El-Hinnawiin a 1985 United
Nations Environmental Programme report. He defined environmental refugees as: those
8Environmental Refugees How Climate Change Affects People's Lives, RESET,
Oct 12th ,2013, http://in.reset.org/knowledge/environmental-refugees%E2%80%93-how-climate-change-affects-peoples-lives
9 Ban Ki Moon, A Climate Culprit In Darfur , Oct 12 th ,2013,
http://www.washingtonpost.com/wpdyn/content/article/2007/06/15/AR2007061501857.html
10 Tiffany T.V. Duong, When Islands Drown: The Plight of Climate Change
Refugees and Recourse to International Human Rights Law, Oct 12 th,2013,
https://www.law.upenn.edu/journals/jil/articles/volume31/issue4/Duong31U.Pa.J.In
t%27lL.1239%282010%29.pdf

people who have been forced to leave their traditional habitat, temporarily or permanently,
because of a marked environmental disruption (natural and/or triggered by people) that
jeopardized their existence and/or seriously affected the quality of their life.11
However, avoiding the term refugee, the UNHCR has moved towards a definition of
environmentally displaced persons as those: who are displaced from or who feel obliged to
leave their usual place of residence, because their lives, livelihoods and welfare have been
placed at serious risk as a result of adverse environmental, ecological or climatic processes
and events.12
Estimates
Norman Myers, who in 1995 predicted 25 million environmental refugees, stated in 2005 that
the impact of global warming could potentially displace 200 million people.13According to
the International Federation of Red Cross climate change disasters are currently a bigger
cause of population displacement than war and persecution. 14 The UNHCR stated that 36
million people were displaced by natural disasters in 2009, and about 20 million of those
were forced to move for climate change-related issues. According to other estimates, there
could be as many as 150 million by 2050. 15
Traditional Refugee Definition Does Not Include Environmental Displacement
The definition of a refugee was set out in the 1951 United Nations Convention Relating to the
Status of Refugees. Today this definition has been adopted by most countries implementing
their refugee statute. 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 regarding persecution based on one of the five allowable grounds, will
those fleeing be afforded refuge in a host country. 16
11VikramOdedraKolmannskog, Future Floods of Refugees, A comment on climate
change, conflict and forced migration Oct 13th,2013,
http://www.nrc.no/arch/_img/9268480.pdf

12DrCamilloBoano, Professor Roger Zetter&Dr Tim Morris, Refugee Studies

Centre Environmentally displaced people, Understanding the linkages between
environmental change, livelihoods and forced migration, Oct 13 th ,2013,
http://www.rsc.ox.ac.uk/publications/policy-briefings/RSCPB1-Environment.pdf
13Supra note 24
14 L. W. Marshall, Toward a new definition of refugee: is the 1951 convention
out of date? (2011) Vol. 37 EJTES 61-66.
15Supra note 24.

Thus excluded from the list of permissible reasons for fleeing are environmental concerns,
including climate change. For many other modern day climate change affected refugees,
the Refugee Convention, as it currently stands, provides no protection or hope for remedy.
Climate change refugees simply are not refugees in the legal sense.
Why the Human Rights Approach is Necessary
The refugee rights that were largely ignored in the original definition are universally
protected. These include, inter alia, the rights to life, health, food/water, livelihood, culture,
privacy and home life, and property. Human rights and the environment are intertwined, as
both mutually rely on each other: Many of the aforementioned rights are extremely sensitive
to environmental degradation and environmental protection is beginning to depend upon the
protection of human rights law. In Tuvalus case in particular, the U.N. Human Rights
Committee has stated:
Tuvalu on its own is incapable of fully protecting the wide range of rights and freedoms
directly implicated by climate change; even though those rights are guaranteed under national
and international law. This is because the ultimate cause of climate change originates far
beyond the borders of the country and far beyond its effective control. Thus, the international
community, in particular the major emitting countries of the developed world, must
themselves also take responsibility for promoting and protecting the human rights of
Tuvaluans by arresting their dangerous interference with the global climate system.17
Why the Human Rights Approach Works
The human rights approach to climate change works because it emphasizes on the legal rights
guaranteed in international human rights documents universally ratified and enforceable
against emitting states. Indeed, human rights treaty bodies can progressively issue rights in
the face of climate change on violating states to uphold the rights of others. Where global
warming seems like a purely scientific problem, international human rights law imposes
obligations on emitting States to address human vulnerabilities to climate change. This
human rights perspective shifts the focus of the legal enforcement mechanisms more directly
onto the individuals affected by climate change. Furthermore, human rights also introduce
an accountability framework that is an essential element of the promotion and protection of
human rights itself, by holding governments, the duty-bearers accountable to reducing the
vulnerability, to global warming and assisting them in adapting to the consequences. 18Thus,
the human rights approach to climate change provides a framework wherein obligations to
protect human rights are enforceable against governments.
16 Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259,
189 U.N.T.S. 150 (1954), http://www.unhcr.org/496365eb2.pdf
17Tiffany T.V. Duong, When Islands Drown: The Plight of Climate Change
Refugees and Recourse to International Human Rights Law, Oct 12th,2013,
https://www.law.upenn.edu/journals/jil/articles/volume31/issue4/Duong31U.Pa.J.In
t%27lL.1239%282010%29.pdf

Protected Rights Imperiled by Climate Change

For climate change affected countries like Tuvalu, human rights may represent a last avenue
towards some sort of remedy. The United States and Australia, as well as many other
developed nations who emit greenhouse gasses, have ratified most of the foundational human
rights documents, including the UDHR, the International Covenant on Civil and Political
Rights (ICCPR),and the International Covenant on Economic, Social, and Cultural Rights
(ICESCR).These documents give rise to international legal obligations that Tuvaluans and
other environmentally displaced persons could use to advocate their position against emitters.
19

Right to Life
The right to life is the most important human right. Without it, no other rights would make
sense and it is considered a peremptory norm of international law. Thus, no derogation is
permitted, even in times of emergency. The right to life is universal and obligatory, enshrined
explicitly or implicitly in every international human rights instrument. Due to increased risks
of hurricanes, flooding, air pollution, vector-borne diseases, famine, and heat waves, climate
change threatens the right to life of people all over the world. The affected parties can argue
that they are facing extinction and that they have become endangered because of climate
change.
Right to Health
Article 25 of the Universal Declaration guarantees the right to a standard of living adequate
for the health and well-being of himself and of his family, including food, clothing, housing
and medical care and necessary social services.20Also the article 12 of the ICESCR
recognizes the human right to health as the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health. Climate change also poses serious health
consequences, such as premature death, serious illness, and the spread of disease. The
affected island nations can claim that climate change will destroy all chances of healthy life
that would remain: the islands would be uninhabitable.
Right to Food and Water

18Tiffany T.V. Duong, When Islands Drown: The Plight of Climate Change
Refugees and Recourse to International Human Rights Law, Oct 12th,2013,
https://www.law.upenn.edu/journals/jil/articles/volume31/issue4/Duong31U.Pa.J.In
t%27lL.1239%282010%29.pdf
19Ibid.
20United National General Assembly, The Universal Declaration of Human Rights,
Oct 11th ,2013, http://www.un.org/en/documents/udhr/

Article 25 of the Universal Declaration and Article 11 of the ICESCR link the rights to life
and health with adequate food.21Additionally, in 2002, the United Nations Human Rights
Committee recognized water access as a basic human right. The affected islands can claim
that these rights will be especially imperiled due to salt water intrusion. Fresh water security
is now a major problem for them. 22
Indigenous Peoples Right to Self-Determination and Cultural Expression
In the recognition of these rights as inviolable, the affected island nations have a very strong
argument against the emitting world. If global warming, as predicted, causes the sea level to
rise more than the few meters then some of the islands may completely submerge. As it can
be inferred that, if a country sinks in its entirety, then not only will that people lose their
nation and their seat in the United Nations General Assembly, but they also lose their
territorial waters. When the ocean drowns such nations, they lose their sovereignty and face
statelessness caused by climate change. This will violate their rights of self-determination.
Article 22 of the Universal Declaration exemplifies the interplay of self-determination and
cultural expression- Everyone, as a member of society, has the right to social security and is
entitled to realization, through national effort and international co-operation and in
accordance with the organization and resources of each State, of the economic, social and
cultural rights indispensable for his dignity and the free development of his personality.23
Additionally, other international treaties support these basic human rights: article 1 of the
ICESCR protects the right of self-determination, and articles 15 of the ICESCR 24 and 27 of
the ICCPR25guarantee the right to enjoy ones own culture. Thus, the loss of the islands will
signal the loss of the the inhabitants history and way of life. Forced to migrate the inhabitants
21United National General Assembly , International Covenant on Economic,
Social and Cultural Rights, Oct 11th ,2013,
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx
22Tiffany T.V. Duong, When Islands Drown: The Plight of Climate Change
Refugees and Recourse to International Human Rights Law, Oct 12th,2013,
https://www.law.upenn.edu/journals/jil/articles/volume31/issue4/Duong31U.Pa.J.In
t%27lL.1239%282010%29.pdf
23United National General Assembly, The Universal Declaration of Human Rights,
Oct 11th ,2013, http://www.un.org/en/documents/udhr/
24United National General Assembly , International Covenant on Economic,
Social and Cultural Rights, Oct 11th ,2013,
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx
25United National General Assembly , International Covenant on Civil and
Political Rights, Oct 11th ,2013,
http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

will be faced with new industrialized societies and economic hardships. They would lose
their right and ability to culturally express them as they wish.26
Right to Property
The right to use and enjoy property clearly covers the loss of ones entire nation. Article 17 of
the Universal Declaration provides that everyone has the right to own property and also
that everyone the right not to be arbitrarily deprived of his property. Tuvaluans face mass
resettlement choices and destruction of culturally and historically significant lands and
buildings.27
Violation of these human rights is happening or will happen soon, as the waters close in over
Tuvalu. Contained within their various instruments, these rights demand that something be
done. The continued emission of GHGs, which further increases global warming and rising
ocean levels, violates these rights and demands recourse.
Legal Recourse for Climate Change affected Refugees underthe Human Rights Lens
Once violations of some of these basic human rights have beenestablished, the UNHCR
argues that States have legal obligations to:
(1) Refrain from interfering with the enjoyment of humanrights in other countries;
(2) Take measures to prevent third parties (e.g. privatecompanies) over which they hold
influence from interferingwith the enjoyment of human rights in other countries;
(3) Take steps through international assistance andcooperation, depending on the
availability of resources, tofacilitate fulfillment of humanrights in other
countries,including disaster relief, emergency assistance, andassistance to refugees and
displaced persons; and
(4) Ensure that human rights are given due attention in international agreements and that
such agreements do notadversely impact upon human rights.28
Thus, after establishing the violation of its human rights, Tuvalu could demand injunctive
relief to prevent companies fromproducing products that contributeto global warming or
requestredress for its climate change refugees and displaced persons.
26Tiffany T.V. Duong, When Islands Drown: The Plight of Climate Change
Refugees and Recourse to International Human Rights Law, Oct 12 th,2013,
https://www.law.upenn.edu/journals/jil/articles/volume31/issue4/Duong31U.Pa.J.In
t%27lL.1239%282010%29.pdf
27United National General Assembly, The Universal Declaration of Human Rights,
Oct 11th ,2013, http://www.un.org/en/documents/udhr/
28UNHRC, Report of the Office of the United Nations High Commissioner for Human
Rights on therelationship between climate change and human rights , Oct 13 th ,2013,
http://www2.ohchr.org/english/issues/climatechange/docs/A.HRC.10.61_AUV.pdf

The UNHCR recognizes and supports the linkage betweenclimate change, human rights, and
obligations on emitting states.Once a breach of a duty under one of the basic, universal
human rights treaties has been established,it will be much easier for stateslike Tuvalu to
demand that other states fulfill certain obligations, enjoin companies or other third parties
within their jurisdictions to stop exacerbating warming effects, provide assistance and aid,
including refugee asylum, and include climate policy considerations in future negotiations.29

29Tiffany T.V. Duong, When Islands Drown: The Plight of Climate Change
Refugees and Recourse to International Human Rights Law, Oct 12th,2013,
https://www.law.upenn.edu/journals/jil/articles/volume31/issue4/Duong31U.Pa.J.In
t%27lL.1239%282010%29.pdf