By Malavika Rao, environmental lawyer and activist
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We understand refugees as an obstruction to State sovereignty and security, as per the Convention Relating to the Status of Refugees’ traditionalist stance of interpreting the letter of the law as it is. The Convention’s exhaustive grounds of race, religion, nationality, membership in a particular social group and political opinion leave behind no room for the legal recognition of climate refugees. Additionally, the fact that climate refugees do not appear to face a 'fear of persecution' from the State as mandated by the Convention enables their exclusion from it. The discussion progresses little beyond this reasoning and the case for legalising climate refugees is a lost cause.
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India has a history of admitting refugees from [vulnerable] countries, but without a discernible legal approach. India has not ratified the Convention and its 1967 Protocol, but in the past has adopted the principle of non-refoulement in its approach of admitting refugees. However, its policies toward refugee groups have often been in the nature of isolated and reactionary responses. In the realm of climate refugees, there is no precedence of acknowledgement by India so far. None of the relevant laws, such as as the Foreigners Act, 1946, Passports Act, 1967, the Illegal Migrants (Determination by Tribunal) Act, 1983, or the proposed Citizenship Amendment Bill reflect a complete picture on where we stand on taking in refugees.
Nonetheless, the global community’s expansion of the dialogue to environmental grounds in the Global Compact for Migration, 2018, and the Global Compact on Refugees, 2018, is a sign of optimism, specifically for India as it has adopted both these instruments. While both the compacts are soft-law instruments, they still provide guidance on a transnational approach that domestic legal orders can adopt in the furtherance of international goals. In light of this development, it is exciting to note the future of India's legal policy on refugees.
Adaptation to climate change requires a bottom-up legal response, originating from the domestic level. It is imperative to view environmental issues from the legal prism of other disciplines, in this case through refugee law.