RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

LEGAL METHOD PROJECT ON

RIGHTS OF REFUGEES: A HUMAN RIGHTS APPROACH

SUBMITTED TO Mr. AZIM PATHAN (Faculty of Legal Methods) BY UDAYAN SANYAL SEMESTER I SECTION- A ROLL NO.169

RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

CERTIFICATE OF DECLARATION
I hereby declare that the project work entitled Rights of Refugees: A Human Rights Approach submitted to HNLU, Raipur, is a record of an original work done by me under the guidance of Mr. Azim Pathan, Faculty Member, HNLU, Raipur. UdayanSanyal Roll No: 169 Section- A Semester I BA.LLB(Hons.)

RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

TABLE OF CONTENTS

Certificate of Declaration02 List of Abbreviations...04 Table of Cases.04 Research Methodology..............................................05 Introduction06 1. International Rights of Refugees ........................................08 2. Rights of Refugees in India..12 3. Climate Change Affected Refugees.17 Conclusion...24 Bibliography& Webliography........25

RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

LIST OF ABBREVIATIONS

UNHCR U.N. i.e UDHR NHRC UNU-EHS Security GHG ICCPR ICESCR

: Office of the United Nations High Commissioner for Refugees : United Nations : that is :Universal Declaration on Human Rights : National Human Rights Commission : United Nations University's Institute for Environment and Human

: Greenhouse Gases : International Covenant on Civil and Political Rights : International Covenant on Economic, Social, and Cultural Rights

TABLE OF CASES

Louis De Raedt vs Union of India State of Arunachal Pradesh vs KhudiramChakma Maneka Gandhi vs Union of India National Human Rights Commission vs State of Arunachal Pradesh Dr Malvika Karlekar vs Union of India U Myat Kayew and Nayzan vs State of Manipur Nuang Maung Mye Nyant vs Government of India Shar Aung vs Government of India

RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

RESEARCH METHODOLOGY

This project work is non-empirical in nature. It follows a descriptive-cum-analytical in approach. It is largely based on secondary & electronic sources of data. Books & other references as guided by faculty of Legal Methods are primarily helpful for the completion of this project. Its main objectives are: To study international rights of refugees To study rights of refugees in India To understand and analyse the problem of climate change affected refugees To find out ways to deal with the existing problems in the sphere of refugee rights

keeping in mind the human rights approach.

RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

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 socio-economic, 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 unintentionaldiscrimination 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. The Convention relating to the Status of Refugees, adopted in Geneva on July 28, 1951, was aimed at regulating the legal status of refugees in far greater detail than the previous instruments and thus, established within the Contracting (signatory) 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. 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

RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

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.1 Thus, the exercise of a function entrusted to UNHCR by a resolution of the General Assembly of United Nations is recognized by the contracting states in a legally binding form. The competence of UNHCR extends to all refugees who are considered as being in need of international protection.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. This project deals with the rights of refugees in the international sphere as well as in India. It also studies ofthe emerging crisis of climate change affected refugees and their rights. It suggests possible measures to improve the conditions of refugees.

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

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CHAPTER I: THE INTERNATIONAL RIGHTS OF REFUGEES

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 WorldWar, 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. Special arrangements were made by the French Government to distinguish at their Pyrenean frontier posts between Spaniards who are economic migrants, and Spaniards who have suffered or who may suffer on political grounds at the hands of the Spanish Government; the latter are permitted to join the 200,000 other Spanish refugees residing in France. These instances of the grantingof preliminary asylum are examples only; but in spite of the commonness of practice, many states have refused to admit such principle. Proposals to include a declaratory article couched in the form of recommendations, rather than stipulating a duty of admission, in the Convention Relating to the Status of Refugees, were rejected by the Ad Hoc Committee of the Economic and Social Council which prepared the text of Convention on the Status of Refugees. The Commission on Human Rights at its second session adopted a resolution "to examine at an early opportunity the question of the inclusion of the right of asylum of refugees from persecution in the International Bill of Human Rights, or in a special Convention for that purpose," but has not yet acted on the resolution; and the language of Article 14 of the Universal Declaration of Human Rights, which states that everyone has the right to seek and to enjoy in other countries asylum from persecution" has been criticized as being apt to create impressions which have no basis in the international law of today.2 The expulsion of aliens is equally a sovereign right of states; but in addition to being used extremely sparingly towards refugees, it is a right which has been restricted in multilateral treaties relating to them. Most bilateralagreements concluded between international agencies charged with the protection of refugees and countries of admission for the resettlement of refugees contain provisions relating to expulsion and deportation; some of the agreements concluded by the International Refugee Organization provided for the interposition of that organization in expulsion proceedings. The Convention of July 28, 1951, Relating to the Status of Refugees provides in this connection: Article 31
2

Paul Weiss, The International Protection of Refugees, Vol. 48, The American Journal of International Law, pg. 193221, ( 1954)

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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. 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.

2.

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 actionwhich may lead to the return of a refugee to a country where he may become the victim of persecution; but it seems difficult to reconcile
3

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

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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 The Legal Limits to Refugee Protection The task of the United Nations High Commissioner for Refugees is to provide protection to refugees and to seek permanent solutions, including voluntary repatriation, integration into the host country, or third country resettlement. Also some very significant countries like India and U.S.A. havent signed the convention relating to the status of refugees. Humanitarian and refugee law in practice provide extremely limited protection for the refugee. Refugees do not have the "right" to enter other states, although governments which have ratified the Convention are not permitted to send refugees back to their home countries if there is basis for well- founded fear of persecution. International law does not require states which host refugees to provide social, economic, political and legal rights to the refugees which equal those of their own citizens, although Article 34 of the International Refugee Convention requires states to facilitate assimilation and naturalization of refugees. While in law, the refugee is considered equal in most respects to all other legal aliens, in fact, not being on good terms with his own countrys government, all he is actually guaranteed is bare survival. 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. Elaborate machinery exists for the protection of human rights with the United Nations Organization. The United Nations Commission on Human Rights and its subsidiary bodies may initiate studies and investigations as well as compile documentation and "communications" on human rights violations. 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.

Paul Weiss, The International Protection of Refugees, Vol. 48, The American Journal of International Law, pg. 193221, ( 1954)

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In contrast, there is no mechanism for refugees to complain about their own treatment as refugees in their country of asylum. Unfortunately for refugees, even the International Law Commission, established by the UN in 1949, very early decided not to deal with refugees or other aliens, and has never done so since that time.5 What needs to be done? Since dealing with the root problems which cause persons to become refugees is more a matter of politics than of law, progress, unhappily, has been discouragingly slight in the refugee area. A foothold for the inclusion of refugees within the protection of International Human Rights norms exists in the draft Declaration drawn up by the United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities in 1974, but to date, it is still not finalized. The Elles draft Declaration on the human rights of non-citizens, if embraced by governments and promoted by human rights activists, could greatly alter the perspective on the rights of refugees, among other alien persons and groups. For example, the draft declaration provides for protection of alien assets. And, although aliens would be required to respect the customs and traditions of the host state, they would also retain the right to maintain their own
5

Roxanne Dunbar-Oritz and Barbara E. Harrell-Bond, Africa Rights Monitor: Who Protects the Human Rights of th Refugees?, Oct11 ,2013, http://www.jstor.org/stable/4186411

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languages, cultures, and traditions a recognition that refugees and other aliens do not wish, in most cases, to be simply assimilated into the host nation's culture. In addition to these rights, refugees would have explicit access to all the existing International Human Rights laws and norms. Besides there is need for expansion of the Universal Declaration of Human Rights to include the Rights of Refugees. Also there is need to make a more comprehensive and binding framework for protection of refugees which would be agreed by most countries.6

CHAPTER II: RIGHTS OF REFUGEES IN INDIA

India has not signed the 1951 Convention relating to the Status of Refugees.However it must be noted that India's refusal to join the Refugee Convention of 1951 does not absolve it from basic commitment to humanitarian protection of refugees. The right of refugees to non-refoulement has been recognized, even if with some reservations, as a part of customary international law. Thus, respect for this right is incumbent on the Indian government as the Constitution of India mentions, as one of the directive principles of state policy that the state [India] shall endeavor to foster respect for international law and treaty obligations in the dealings of organized peoples with one another.7 It is pertinent to note that it is now well-established that the phrase, "international law" represents customary international law. In addition, India has signed numerous human rights instruments that articulate a commitment to protection of refugees. India is party to the Universal Declaration on Human Rights (UDHR)

Roxanne Dunbar-Oritz and Barbara E. Harrell-Bond, Africa Rights Monitor: Who Protects the Human Rights of th Refugees?, Oct 11 ,2013, http://www.jstor.org/stable/4186411 7 th People of India, Article 51 (c),Constitution of India, Oct 11 ,2013, http://lawmin.nic.in/olwing/coi/coienglish/Const.Pock%202Pg.Rom8Fsss%288%29.pdf

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1948. Article 14 of the UDHR states: "Everyone has the right to seek and enjoy in other countries asylum from persecution".8 Also the Indian Constitution guarantees certain fundamental freedoms to all persons and not just to Indian citizens. Hence, persons who flee their country of origin and seek asylum in India have the protection of those fundamental rights, independent of the need for any recognition by the government of India or by any other international body like the UNHCR.9 The fundamental rights that all persons, including asylum-seekers and refugees enjoy under the Constitution include:10 Right to Equality before Law (Article 14)11 The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This right entails that there shall not be any discrimination between people or classes of people without reasonable classification by the legislature between different classes thus discriminated. Protection of Life and Liberty (Article 21) No person shall be deprived of his life or personal liberty except according to due procedure established by law. In Louis De Raedt vs Union of India12 and State of Arunachal Pradesh vs Khudiram Chakma13 case, the Supreme Court has held that foreigners are also entitled to the protection of article 21 of the Constitution. While till 1978, article 21 was construed narrowly as a mere guarantee against executive action unsupported by law, it is now well established by a series of decisions starting from Maneka Gandhi vs Union of India it imposes a limitation upon law insofar as that the procedure stipulated therein must be just, fair and reasonable. Therefore in the specific context of refugee protection, it means that while earlier, the courts merely had to consider whether the decision to deport complied with the procedure laid down in the Foreigners Act, it had now to consider whether the procedure was fair, just and reasonable. Right to Fair Trial It has been recognized by the Supreme Court as a component of the right to protection of life and liberty. This also entails the right to be produced before a magistrate within 24-hours of arrest.

United National General Assembly, The Universal Declaration of Human Rights, Oct 11 ,2013, http://www.un.org/en/documents/udhr/ 9 SaurabhBhattacharjee, India Needs a Refugee, Vol. 43, No. 9 (Mar. 1 - 7, 2008), Economic and Political Weekly, pg. 71-75 10 th SaiAbhipsaGochhayat, Protection of Refugees in India, Oct 12 ,2013, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1957146 11 th People of India, Constitution of India, Oct 12 ,2013, http://lawmin.nic.in/olwing/coi/coi-english/coiindexenglish.htm 12 1991 AIR 1886 13 1993 SCR (3) 401

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These rights put a refugee and a citizen of India on the same pedestal as far as liberty is concerned. Judicial Expansion of Rights The judiciary has played a very important role in protecting refugees. Court orders have filled legislative gaps and in many cases have provided humanitarian protection to refugees. Moreover, Indian courts have allowed refugees and intervening NGOs to file cases before them. Furthermore, the courts have interpreted provisions of the Constitution, existing laws and, in the absence of municipal law, provisions of international law to offer protection to refugees and asylum seekers. Indian courts have decided in a number of cases that the constitutional protection of life and liberty must be provided to refugees. In the case of National Human Rights Commission vs State of Arunachal Pradesh the SC restrained the forcible expulsion of Chakma refugees from the state.It directed the State Government to ensure that the Chakmas situated in its territory are not ousted by any coercive action not in accordance with the law. The court directed the state government to ensure that the life and personal liberty of each and every Chakma residing within the state should be protected.14 In a number of cases, Indian courts have protected the rights of refugees to non- refoulement and have protected them where there are substantial grounds to believe that their life would be in danger, by allowing them to be granted refugee status by the UNHCR. In Dr Malvika Karlekar vs Union of India, the Supreme Court held that authorities should consider whether refugee status should be granted; and until this decision was made, the petitioner should not be deported.15 Gauhati High Court issued a landmark ruling in the case of U Myat Kayew and Nayzan vs State of Manipur. It involved eight Burmese, aged 12 to 58, who had voluntarily surrendered to the Indian authorities &were detained in Manipur Central Jail in Imphal for illegal entry. They were charged under section 14 of the Foreigners Act for illegal entry into India. They filed a petition for their release and to enable them to seek refugeestatus with UNHCR in New Delhi. Gauhati High Court, under article 21, ruled that asylum seekers, who enter India, even if illegally, should be permitted to approach the office of the UNHCR to seek refugee status. The judiciary has also upheld a refugee's right to leave the country. In Nuang Maung Mye Nyant vs Government of India and Shar Aung vs Government of India, the courts ruled that even those
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SaurabhBhattacharjee, India Needs a Refugee , Vol. 43, No. 9 (Mar. 1 - 7, 2008), Economic and Political Weekly, pg. 71-75 15 SaiAbhipsaGochhayat, Protection of Refugees in India, Oct 12th ,2013, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1957146

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refugees against whom cases were pending for illegal entry should be provided exit permits to enable them to leave the country for third country resettlement. 16 Thus, it follows from the aforesaid discussion that the legal framework for protection of refugees in India has been characterized by an eclectic interplay of administrative ad-hocism and judicial assertion of constitutional rights. Limitations In spite of the emergent notion of refugee rights in India, legal protection has remained a chimera for most of the refugee communities residing in India with their very survival being at stake. Along with the tentative and imperfect judicial response, the other major cause for this distressing repudiation of judicial and constitutional mandate is the conspicuous absence of any defined statutory framework or even a policy on refugees. Thus there have been no defined standards for implementing the judicial and constitutional directives on refugee protection. India has chosen to deal with refugees at political and administrative levels. It has therefore only ad hoc mechanisms in place to deal with their status and problems and there is no separate law defining refugees and their entitlements. The legal status of the refugees is thus no different from those ordinary aliens whose presence is regulated essentially by the Foreigners Act of 1946.17 Hence, the distinction between refugees and asylum seekers, on one hand and migrants and other aliens, on the other have been conflated. Refugees and asylum seekers are externally displaced persons forced out or forced to leave their countries and who cannot return because they have a well- founded fear of persecution. But, they are distinct from migrants who come to India voluntarily seeking a better life. The Foreigners Act, 1946 deals with the matters of entry of foreigners in India, their presence therein and their departure therefrom. It stipulates a general obligation that no foreigner should enter India without the authorization of the authority having jurisdiction over such entry points. It is mainly intended to deal with illegal entrants and infiltrators. Incase of persons who do not fulfill certain conditions of entry, the order authorizes the civil authority to refuse the leave to enter India. The main condition is that unless exempted, every foreigner should be in possession of a valid passport or visa to enter India. If refugees contravene any of these provisions they are liable to prosecution and thereby to the deportation proceedings just like any other foreigner.18 Thus, there is no clearly defined category of refugees under Indian law. Foreigners generally are a classified category which can be further sub-divided as per the Foreigners Act regime, but no
16

SaurabhBhattacharjee, India Needs a Refugee , Vol. 43, No. 9 (Mar. 1 - 7, 2008), Economic and Political Weekly, pg. 71-75 17 SaurabhBhattacharjee, India Needs a Refugee , Vol. 43, No. 9 (Mar. 1 - 7, 2008), Economic and Political Weekly, pg. 71-75 18 SaurabhBhattacharjee, India Needs a Refugee , Vol. 43, No. 9 (Mar. 1 - 7, 2008), Economic and Political Weekly, pg. 71-75

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such sub-classification has been made for refugees. As such, refugees, like other foreigners, are generally subject to deportation with minimal due process. Therefore, the status of refugees is presently determined by the extent of protection they receive from the government of India which in turn has been influenced more by political equations than by humanitarian or legal obligations. There are certain refugee communities like Tamil refugees from Sri Lanka, Jumma & Chakma refugees from fro former East Pakistan or present Bangladesh and Tibetan refugees who have received full protection according to the standards set by the government of India.They are accorded legal stay indefinitely through executive discretion exercised under the Foreigners Act. There are few other communities like the Burmese, Afghan, Iranian, Somalian, Sudanese and Iraqi refugees whose presence in India is acknowledged only by the UNHCR and there is no protection from the government of India except those under the principle of non-refoulement. The home office has created a flexible procedure to enable resettlement. It has entered into an arrangement with the UNHCR under which the UNHCR determines the status of a refugee and gives a certificate to that effect. But such certification is only persuasive and provides no protection. They remain as foreigners and on the basis of UNHCR refugee certificates are issued temporary residence-permits under the Foreigners Act pending durable solutions. However, the condition of such communities is precarious. They do not even have work permits. There are other refugees like the Chin refugees in Mizoram who have entered India and have assimilated into local communities but have not been recognized by the UNHCR. Neither the Indian government nor the UNHCR acknowledges their presence. The government has also denied UNHCR access to the seven states of the north-east including Mizoram where the vast majority of Burmese refugees are sheltered. Thus, these refugees receive no official acknowledgement whatsoever. Thus, they have been consistently subjected to harassment and periodic eviction drives by sections of civil society in Mizoram and other parts of the north-east. Conclusions It can be said that the absence of a special law on the protection, rights and entitlements of refugees has resulted in the denial of basic protection to a large number of refugees and runs against the spirit of India's human rights commitment under the international law and its own Constitution. The judiciary and allied institutions like the NHRC have tried to respond to the refugee question with innovative judicial interpretation to establish several procedural rights and in many cases, have prevented forced deportation. However, such interventions have been limited to specific cases and the judicial pronouncements have not been implemented across a wide spectrum. This has been occasioned due to the absence of a definite refugee law. This absence has certainly meant that arbitrary executive action and acts of discrimination are not easily remedied. This further means that the decision to treat a person or a group of persons as refugees or not is taken
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on the merits and circumstances of the cases coming before it as they are overshadowed by political considerations.Thus, the refugees are left to the mercy of the state and have no recourse against systemic violations of its legal obligations by the state. Therefore, a just,fair and humane response to the question of refugees in India, in conformity with India's international and constitutional obligations requires, as an immediate imperative, adoption of a definite statutory regime that clearly defines refugees as a distinct class of persons, spells out a fair procedure for determination of the status of refugees and outlines a due process for refugee protection.

CHAPTER III: CLIMATE CHANGE AFFECTED REFUGEES

What we are now seeing are more and more people that are forced to flee because of lack ofwater, because of lack of food, because of extreme poverty and many of these situations areenhanced 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 areprotected 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 peopledisplaced by extreme weather events. This is the problem that the international communityhas to address urgently.19

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

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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. However, 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. 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. 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 private and public sector, the circumstances which turn citizens into environmental refugees often happen silently and gradually, far away from the limelight. 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. On the other side of the globe, Louisiana in the US loses around 65 square kilometers per year to the sea, and in Alaska 213 communities are threatened by tides that flow inland by up to three meters a year. 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.20 Almost two billion people in the world today depend on the fragile ecosystems in arid and semiarid areas, and 90 percent of them live in the developing world. So the effects of global warming, mainly caused by the industrialized nations, hit the poorest nations most. Here, ecological stresses caused by droughts and desertification are threatening livelihoods and food certain crops and livestock are unlikely to survive in certain locations if conditions become too hot and dry, or too cold and wet. With this leading to an increasing number of people competing for a decreasing amount of resources, environmental migration also 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.21 As nations point fingers and blame to each other, nothing is beingdone to help the victims to mitigate or adapt the effects of climatechange. The islanders (who will be affected the most) have not been successful in securing anyform of relief or rescue, whether preventative or
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Environmental Refugees How Climate Change Affects People's Lives, RESET, Oct 12 ,2013, http://in.reset.org/knowledge/environmental-refugees-%E2%80%93-how-climate-change-affects-peoples-lives 21 th Ban Ki Moon, A Climate Culprit In Darfur , Oct 12 ,2013, http://www.washingtonpost.com/wpdyn/content/article/2007/06/15/AR2007061501857.html

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humanitarian.Three characteristics of climate change, which make it unlike anyother type of environmental disaster that the world has faced todate, may explain why this is.First, as it is a prospective disaster, present day preparations and remedies may appear excessive or unnecessary. The lack ofconsensus regarding the mere existence and scientific causes ofclimate change often supports denials of help to climate change victims. Secondly, since climate change entails trans-boundary pollution,the global nature of the cause means that prevention cannot beeffective if undertaken by isolatedparties or nations. Any seriousefforts to curtail emissions or tochange behaviors cannot be truly successful without implicating the entire world.Finally, climate change has a built-in disparate impact: thosecountries producing the most harmful GHGs are usually the leastaffected by climate change disasters, while those producing theleast seem to bear the greater brunt of global warming harms.Moreover, the victims of climate change, often small islands orpoor nations, are frequently in the worst position to adapt andmitigate the damages.22 A refugee, according to theinternational refugee Convention does not specifically include someone displaced by a naturaldisaster or by climate change related impacts.The term environmental refugee was first coined by Essam El-Hinnawiin a 1985 UnitedNations Environmental Programme report. He defined environmental refugees as: thosepeople who have been forced to leave their traditional habitat, temporarily or permanently,because of a marked environmental disruption (natural and/ortriggered by people) thatjeopardized their existence and/or seriously affected the quality of their life.23 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, becausetheir lives, livelihoods and welfare have been placedat serious risk as a result of adverseenvironmental, ecological or climatic processes and events.24 Estimates Norman Myers, who in 1995 predicted 25 million environmental refugees, stated in 2005 that the impact of globalwarming could potentially displace 200 million people.25According to the International Federation of Red Cross climate change disasters arecurrently a bigger cause of

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Tiffany T.V. Duong, When Islands Drown: The Plight of Climate Change Refugees and Recourse to International th Human Rights Law, Oct 12 ,2013, https://www.law.upenn.edu/journals/jil/articles/volume31/issue4/Duong31U.Pa.J.Int%27lL.1239%282010%29.pdf 23 VikramOdedraKolmannskog, Future Floods of Refugees, A comment on climate change, conflict and forced th migration Oct 13 ,2013, http://www.nrc.no/arch/_img/9268480.pdf
24

DrCamilloBoano, Professor Roger Zetter&Dr Tim Morris, Refugee Studies Centre Environmentally displaced th people, Understanding the linkages between environmental change, livelihoods and forced migration, Oct 13 ,2013, http://www.rsc.ox.ac.uk/publications/policy-briefings/RSCPB1-Environment.pdf 25 Supra note 24

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RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

population displacement than war and persecution.26 The UNHCR stated that 36 million people were displaced bynatural disasters in 2009, and about 20 million of those were forced to move forclimatechange-related issues.According to other estimates, there could be as many as 150 million by 2050. 27 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. Over fifty years later, this definition has been adoptedby most countries implementing their refugee statutes. 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. 28 Thus excluded from the list of permissible reasons for fleeing are environmental concerns, including climate change. For Tuvaluans and many other modern day 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 thatwere largely ignored in the original definitionare universallyprotected. 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 bothmutually rely on each other: Many of the aforementioned rightsare extremely sensitive to environmental degradation,andenvironmental protection is beginning to depend upon theprotection 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 widerange of rights and freedoms directly implicated by climatechange; even though those rights are guaranteed undernational and international law. This is because the ultimatecause of climate change originates far beyond the bordersof the country and far beyondits effective control. Thus,the international community, in particular the majoremitting countries of the developed world, mustthemselves also take responsibility for promoting andprotecting the human rights ofTuvaluans by arresting theirdangerous interference with the global climate system.29
26

L. W. Marshall, Toward a new definition of refugee: is the 1951 convention out of date? (2011) Vol. 37 EJTES 61-66. 27 Supra note 24. 28 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 29 Tiffany 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.Int%27lL.1239%282010%29.pdf

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RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

Why the Human Rights Approach Works The human rights approach toclimate change works because itemphasizes the legal rights guaranteed by international humanrights documents universally ratified and enforceable againstemitting states. Indeed, human rights treaty bodies canprogressively issue rights in theface of climate change or on theobligations of states charged with responsibility to uphold therights of others.Where global warming seems like a purelyscientific problem, international human rights law imposesobligations on emitting States toaddress human vulnerabilities to climate change.This human rights perspective shifts the focus ofthe legal enforcement mechanisms more directly onto theindividuals affected by climate change. Furthermore, humanrights also introduce an accountability framework that is anessential element of the promotionand protection of human rightsitself, by holding governments, the duty-bearers accountable toreducing the vulnerability,to global warming and assisting them in adapting to the consequences.30Thus, the human rightsapproach to climate change provides a framework whereinobligations to protect human rights are enforceable againstgovernments. Protected Rights Imperiled by Climate Change For climate change affected countries like Tuvalu, human rights may represent a last avenue towardssome sort of remedy. The United States and Australia, as well as many other developed nations who emit GHGs, have ratified mostof the foundational human rights documents, including theUDHR,the International Covenant on Civil and PoliticalRights (ICCPR),and the International Covenant on Economic,Social, and Cultural Rights (ICESCR).These documents giverise to international legal obligations that Tuvaluans and otherenvironmentally displaced persons could use to advocate theirposition against emitters. The rights enumerated below are mostpertinent to Tuvalu. 31 Right to Life The right to life is the most important human right: withoutit, no other rights would make sense, and it is considered aperemptory norm of international law. Thus, no derogation ispermitted even in times of emergencyand it can only be modified by a subsequent norm of general international lawhaving the same character.The right to life is universal andobligatory, enshrined explicitly orimplicitly in every internationalhuman rights instrument.Due to increased risks of hurricanes, flooding, air pollution,vector-borne diseases, famine, and heat waves, climate changethreatens the right to life of people all over the world. Tuvaluans can argue that they are facingextinction and that they havebecome endangered because of climate change,because

30

Tiffany 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.Int%27lL.1239%282010%29.pdf 31 Ibid.

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RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

therising oceans will completely drown their nation and make itimpossible for them to continue their indigenous way of life. Right to Health Article 25 of the Universal Declaration guarantees the right toa standard of living adequate for the health and well-being ofhimself and of his family, including food, clothing, housing andmedical care and necessary social services.32Similarly, the ICESCR recognizes the human right to health as the right ofeveryone to the enjoyment of thehighest attainable standard o f physical and mental health. The right to health and well-beingis closely associated with rights to food, adequate livingconditions, and safe and healthy working conditions. Climate change also poses serious health consequences, such as prematuredeath, serious illness, and the spread of disease. Furthermore, threats to the food supply, natural disasters, infectious diseases,sea-level rise, changes in precipitation patterns, and increasedincidences of extreme weather events will impair the right tohealth.This right could be instrumental to Tuvalus argumentthat even if climate change does not engulf its islands, it willdestroy all chances of healthy life that would remain: the islandswould beuninhabitable. Right to Food and Water Article 25 of the Universal Declaration and Article11 of the ICESCR link the rights to life and health with adequate food.33Additionally, in 2002, the United Nations Human RightsCommittee recognized water access as a basic human right.ForTuvalu, these rights will be especially imperiled due to salt water intrusion. Fresh water security is now a major problem forthem. 34 Indigenous Peoples Right to Self-Determination and Cultural Expression In the recognition of these rights as inviolable, Tuvalu has avery strong argument against the emitting world. If global warming, as predicted, causes the sealevel to rise more than the fewmeters necessary to completelysubmerge Tuvalu, the islanders losetheir entire physical nation..As it can be inferred that, if a countrysinks in its entirety, then not only will that people lose their nation and their seat in the United Nations General Assembly, but theyalso lose their territorial waters. One would think that there aresurely international protectionsagainst such devastating lossesagainst the denial of fundamental human rights such as the right tolive, to keep ones history, and tohave a future. Such protectionsdo exist. When the ocean drowns Tuvalu, the loss of sovereigntyand statelessness caused by climate change will violate Tuvalusrights of selfdetermination.Article 22 of the Universal Declaration exemplifies the interplayof self32 th

United National General Assembly, The Universal Declaration of Human Rights, Oct 11 ,2013, http://www.un.org/en/documents/udhr/ 33 th United National General Assembly , International Covenant on Economic, Social and Cultural Rights, Oct 11 ,2013, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx 34 Tiffany 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.Int%27lL.1239%282010%29.pdf

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RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

determination and cultural expression:Everyone, as a member of society, has the right to social security and is entitled to realization, through nationaleffort and international co-operation and in accordancewith the organization and resources of each State, of theeconomic, social and culturalrights indispensable for hisdignity and the free development of his personality.35 Additionally, other internationaltreaties support these basichuman rights: article 1 of the ICESCR protects the right of self-determination, and articles 15 of the ICESCR36 and 27 of the ICCPR37guarantee the right to enjoy ones own culture. Thus, the loss of the islands will signal the loss of the Tuvaluanhistory and way of life. Forced to migrateTuvaluans will be faced with new industrialized societies andeconomic hardships.They would lose their right and ability to culturallyexpress them as they wish.38 Right to Property The right to use and enjoy property clearly covers the loss of ones entire nation. Article 17 of the Universal Declarationprovides that everyone has the right to own property and alsothat everyone the right not tobe arbitrarily deprived of hisproperty.Tuvaluans face mass resettlement choices anddestruction of culturally and historically significant lands andbuildings.39 Violation of these human rightsis happening or will happensoon, as the waters close in overTuvalu. Contained within theirvarious instruments, these rights demand that something be done.The continued emission of GHGs,which further increases globalwarming and rising ocean levels, violates these rights anddemands 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) (2) Refrain from interfering with the enjoyment of humanrights in other countries; Take measures to prevent third parties (e.g. privatecompanies) over which they hold influence from interferingwith the enjoyment of human rights in other countries;

35

United National General Assembly, The Universal Declaration of Human Rights, Oct 11 ,2013, http://www.un.org/en/documents/udhr/ 36 United National General Assembly , International Covenant on Economic, Social and Cultural Rights, Oct 11th ,2013, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx 37 th United National General Assembly , International Covenant on Civil and Political Rights, Oct 11 ,2013, http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx 38 Tiffany T.V. Duong, When Islands Drown: The Plight of Climate Change Refugees and Recourse to Interna tional th Human Rights Law, Oct 12 ,2013, https://www.law.upenn.edu/journals/jil/articles/volume31/issue4/Duong31U.Pa.J.Int%27lL.1239%282010%29.pdf 39 th United National General Assembly, The Universal Declaration of Human Rights, Oct 11 ,2013, http://www.un.org/en/documents/udhr/

th

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RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

(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 Ensure that human rights are given due attention in international agreements and that such agreements do notadversely impact upon human rights.40

(4)

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. 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 otherstates fulfill certain obligations, enjoin companies or other third parties within their jurisdictions tostop exacerbating warming effects, provide assistance and aid, including refugee asylum, and include climate policyconsiderations in future negotiations.41

CONCLUSION
There is need for expansion of the Universal Declaration of Human Rights to include the Rights of Refugees. Also there is need to make a more comprehensive and binding framework for protection of refugees which would be agreed by most countries. India on its part needs to make a new law to effectively deal with the refugee problem in the country. Sadly, the International Law as it currently stands is not adequate to protect climate change affected refugees.As the globecontinues to warm, predictions show millions more climate changerefugees will soon be fleeing their homes looking for asylum as a last resort. The needs of those countries, coupled with the humanrights argument, demand a renegotiation of the RefugeeConvention that considers environmental concerns. Currentclimate change refugees can andshould insist, based on theirviolated human rights, on being included within the refugeframework. While critics staunchly defend the strict reading of theRefugee Convention
40

UNHRC, Report of the Office of the United Nations High Commissioner for Human Rights on the th relationship between climate change and human rights , Oct 13 ,2013, http://www2.ohchr.org/english/issues/climatechange/docs/A.HRC.10.61_AUV.pdf 41 Tiffany 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.Int%27lL.1239%282010%29.pdf

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RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

definition, theretooling of this internationaldefinition may not be as difficult as it sounds. In fact, somescholars have already advocated for such an expansion as nomore than an easy extension of human rights policy.For example, Cooper argues that since the 1951 refugee definition isheavily imbued with human rights notions, and environmental refugees are no less entitled to their basic rights and needs thantheir traditional counterparts, using human rights concepts toexpand the refugee definition has natural appeal. There is support even within the current regime itself for amore expansive approach to defining who qualifies as a refugee.The framers of the Refugee Convention recognized that certainindividuals not explicitly fallingwithin the treatys provisionswould have legitimate and compelling claims for internationalprotection. Thus there is need for international cooperation and decision making to bring about a new and effective refugee convention which would not only be acceptable to the important stake holders but also inclusive of the modern concerns of refugees including those affected by climate change.

BIBLIOGRAPHY & WEBLIOGRAPHY

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Tiffany T.V. Duong, When Islands Drown: The Plight of Climate Change Refugees and Recourse to International Human Rights Law The Universal Declaration of Human Rights United Nations High Commissioner for Human Rights International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights Constitution of India Convention Relating to the Status of Refugees All India Reporter

RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

Petra urkov, Anna Gromilova, Barbara Kiss &Megi Plaku , Climate refugees in the 21st century DrCamilloBoano, Professor Roger Zetter&Dr Tim Morris, Refugee Studies Centre Environmentally displaced people, Understanding the linkages between environmental change, livelihoods and forced migration The Nansen Conference, Climate Change and Displacement in the 21st Century Economic and Political Weekly Sai Abhipsa Gochhayat, Protection of Refugees in India Roxanne Dunbar-Oritz and Barbara E. Harrell-Bond, Africa Rights Monitor: Who Protects the Human Rights of Refugees? Mara-Teresa Gil-Bazo, Refugee status, subsidiary protection and the right to be granted asylum under EC law Liisa H. Malkki, Refugees and Exile: From "Refugee Studies" to the National Order of Things Gaim Kibreab, Citizenship Rights and Repatriation of Refugees Jstor- www.jstor.org Scribd-www.scribd.com SSRN- www.ssrn.com Lawcite.org

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