14 December 2020 – by Dharma Khalsa
INTRODUCTION
Climate change is slated to create the largest number of refugees in the coming decades. Yet, the current refugee definition does not adequately protect the increasing number of people bound to flee these inhospitable conditions. In 2016 extreme weather-related disasters displaced around 23.5 million people.[i] What is lost in this statistic are the people forced to flee their homes because of slow-onset environmental degradation like droughts, sea level rise, and melting permafrost.[ii]
Imagine for a moment that you are a Bangladeshi villager. For years you have watched as water creeps closer to your home. Then, one day, you return from a walk in the fields to find your house under water. Although you are used to some amount of flooding, this time the damage is too much. The next day, you pack up what you can and make the trek to a new home in the big city of Dhaka. This home is in a slum of the Mirpur district because you cannot afford anything else. You find somewhere to land, packed in like sardines next to your new neighbors; likely folks from other parts of the country, fleeing similar situations. After months with no job, nearly no food or clean water, and inadequate sanitation, you decide to try your luck elsewhere. You pack up your things, yet again, and hop on a bus to the Indian border. However, once you arrive you encounter a fence and are turned away before you can enter. With nowhere else to go you take a huge risk and flee to Europe.
For many this is a reality. Bangladesh is on the frontlines of the worst climate impacts. It is known as the ‘Land of Rivers’ because in a nation about the size of New York state there are nearly 800 rivers.[iii] Its low elevation, high population, inadequate infrastructure, and heavy reliance on farming makes Bangladesh a major generator of climate refugees.[iv] Bangladeshis have long used migration as a coping strategy because of the country’s natural susceptibility to extreme weather. However, the rate of migration has drastically increased with the modern onslaught of climate change.[v]
Bangladeshis are far from the only population facing an increase in climate refugees. However, the state is relatively poor, and therefore often struggles to suitably provide for its’ internally displaced citizens.[vi] Many end up fleeing the country altogether. In fact, in May 2017, Bangladesh was the largest single origin of migrants arriving in Europe.[vii]
Although there is an obvious need to assist people fleeing climate driven disasters and slow-onset environmental degradation, the current legal frameworks are insufficient. Climate refugees likely have a well-founded fear of living under hostile conditions, yet the current refugee definition only includes those with a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.”[viii] This definition is far too narrow and leaves out folks fleeing their homes due to climate change.
This paper will examine the definition of a refugee as contemplated by the 1951 Convention through a hypothetical asylum claim for Janaki Aktar, originally from Kushtia, Bangladesh who flees to Dhaka after rising sea levels flood her home. It will then look at some of the regional expansion of the refugee definition to see if they might better apply to climate refugees. It will ultimately conclude that none of the current definitions are flexible enough to account for the thousands of people displaced by climate related events every year.
CLIMATE REFUGEES LIKELY DO NOT FIT THE 1951 CONVENTION DEFINITION OF A REFUGEE
At the individual level, a grant of asylum hinges on meeting the definition of a refugee.[ix] Mercifully, there may be some room to stretch the definition to account for instances where a government fails to care properly for its most vulnerable citizens who have been displaced by climate change. If the government is in such a state of disfunction that the fleeing person is “unwilling or unable” to avail themselves of state protection, they might be able to make a claim for asylum.[x] However, climate refugees will likely have to fight the definition at every turn, which makes the definition unsuitable for the increasing number of climate refugees seeking protection from the international community.
The Country Conditions
In May 2017, the largest single origin of migrants arriving in Europe were from Bangladesh. [xi] This is largely because Bangladesh is vulnerable to climate change. Generally, people do not flee their homes and villages at such a drastic rate without a good reason. The largest city in Bangladesh, Dhaka, is often the first stop for rural peoples who must abandon their homes. However, this city is already stretched to its limits.[xii] The fact that such a large number of Bangladeshis are leaving speaks to a state in peril.
States have a responsibility to protect and create conditions of dignity for their citizens. In Bangladesh, unlike in the United States, which has a higher level of economic stability, folks who are affected by climate change tend to end up falling outside of governmental protection. For example, after Hurricane Katrina, in New Orleans, there were many people displaced who were given temporary state protection until they got back on their feet. Bangladesh has had climate events that far surpass Katrina, yet folks, more often than not, are left unprotected by the government.[xiii] Unlike Katrina, Bangladeshis that leave their country do so because the state social nets are not equipped (or are non-existent) to support poor, rural communities who have lost their homes due to climate change.
Well-Founded Fear
The wide-spread migration happening in Bangladesh is a result of these general country conditions and it further lends itself to meeting the well-founded fear requirement.[xiv] A well-founded fear is “the likelihood of harm” and is often based on a pattern or an ongoing practice of persecution.[xv] The pattern of internal relocation to quell the suffering of losing one’s home, livelihood, and community, rather than providing resources to rebuild or fortify current residences exacerbates the degradation of human dignity faced by climate refugees in Bangladesh. Thus, this pattern contributes to the unreasonableness of relocating within the country.
Although “[a]n applicant cannot establish a well-founded fear or threat to life or freedom if she could avoid harm by ‘relocating’ to another part of the country,” this is only true if “such relocation would be reasonable.”[xvi] Therefore, the opposite of this must also be true. If it is unreasonable for an applicant to relocate to another part of the country, then they should be able to establish a well-founded fear or threat to life or freedom. Bangladesh’s reluctance to invest in cities, besides Dhaka, further contributes to the unreasonableness of relocation within the country.
On the list of circumstances potentially making relocation unreasonable is lack of “economic infrastructure” and “geographical limitations.”[xvii] In this case, Janaki attempted to relocate to Dhaka because that was likely the only option within Bangladesh to find work to support her family. Yet, the state was unable to provide the necessary economic infrastructure for her to meet these needs. Additionally, because the majority of Bangladesh (including Dhaka) is so vulnerable to climate change, the country is inherently limited by geography to provide a more secure place for Janaki to move. Without a reasonable alternative for relocation within Bangladesh, Janaki might be able to prove a well-founded fear through a pattern of persecution.
Persecution
“Persecution” is the “sustained or systemic violation of basic human rights demonstrative of a failure of state protection.”[xviii] In this case, the “persecution” at issue is not (as might be expected upon first blush) the climate event or even climate change itself, but rather it is the government’s inability to provide care and protection to its citizens. Such an inability results in the total loss of economic personhood.[xix]
In Kovac v. INS the court held that although the persecution is not direct, “economic proscription so severe as to deprive a person of all means of earning a livelihood may amount to physical persecution.”[xx] In that case, Kovac was a trained chef who was unable to find work cooking in Yugoslavia. Here, Janaki is not just looking for a “better” job or even a job in her previous field, she is seeking to maintain a sense of human dignity by finding any work at all. She is seeking to feed herself and her family, to have access to clean water, and not to contract a disease. Therefore, the economic proscription is so severe as to completely deprive Janaki of all means to earn a living. As Janaki has been denied all employment opportunities due to the state’s lack of economic infrastructure, her economic persecution far surpasses the economic deprivation experienced in Kovac.
When contemplating the application of economic deprivation in Dhaka (a city that is already incredibly overpopulated) living in a slum where “communicable diseases fester and fires sporadically raze homes” might be the only option due to a lack of work, and therefore a lack of financial resources.[xxi] In this sense, economic deprivation likely rises to the level of physical persecution as it is directly tied to the experienced physical discomfort. However, proving this is still a difficult task because courts have recognized that poverty, disease, and illiteracy exist in every country and do not in themselves amount to persecution. Thus, the surrounding circumstances, including the country conditions and nexus of persecution will help slide the scale one way or the other.
On Account Of “Social Group”
Here is where the definition gets harder to meet because a climate refugee does not appear to clearly fit into a Convention group. The well-founded fear of persecution must be on account of “race, religion, nationality, membership in a particular social group or political opinion.” [xxii] The most likely option is that this persecution is on account of social group. Specifically, Janaki is part of a group of displaced, rural citizens with little education, who have lost their home, land, and community. Yet, it is tricky when trying to discern whether her persecution was on account of this social group or this group resulted in de facto persecution by the state.
However, if she fails to show direct persecution for a convention reason, thus establishing ‘nexus,’ all hope might not be lost. In fact, “where the risk of being persecuted at the hands of a non-State actor is unrelated to a Convention group, but the inability or unwillingness of the State to offer protection is for a Convention reason,” nexus may still be established.[xxiii] This is called bifurcated nexus, where direct harm or the failure of state protection against persecution on the basis of a Convention reason can meet the definition. Therefore, although climate change did not target Janaki for a Convention reason, as climate is generally an indiscriminate force without such an agenda, all might not be lost. She may yet prove that the state failed to protect her from economic deprivation on account of being a displaced person from a rural community. Assuming the state does not extend its lack of protection to everyone in Dhaka, equally, a case for persecution based on bifurcated nexus might exist.
Furthermore, the UNHCR does not endorse the term “climate refugee” and tends to only recognize refugee status of a person displaced by climate events if there are “nexus dynamics” at play. [xxiv] Arguably, in any case that a climatic event rises to the level where conditions exist that force a person to flee across borders, these dynamics exist. Thinking back to the case of Katrina, had the Bangladeshi (or any) state created a social net to provide for displaced folks, they likely would never have left the country. Even so, Janaki will likely have to evidence that “nexus dynamics” in the form of bifurcated nexus resulted in persecution on account of her social group. Unfortunately, it is likely that the state would treat a poor urban citizen the same as a displaced rural citizen, and thus she will likely not be able to meet this element.
Courts in the U.S. have noted that “aliens fleeing general conditions of violence and upheaval in their countries, would not qualify for asylum.”[xxv] This likely includes climate refugees as they would have to fight the definition at every turn. Therefore, a broader definition is needed to account for climate refugees seeking asylum. Some regional Conventions have sought to address broader scales issues of violence and upheaval in their definitions. This is where the idea of an effects versus intent framework may be important to consider.
CLIMATE REFUGEES LIKELY DO NOT MEET THE ORGANIZATION OF AFRICAN UNITY (“OAU”) OR THE CARTAGENA CONVENTIONS DEFINITION OF A REFUGEE IN A MEANINGFUL WAY
Looking at the social framework of refugee protection, if climate change drives a person from their homeland because they are not cared for by their own state, this may result in de facto loss of state protection. Yet, the original 1951 Convention definition is too narrow to account for such a social framework. The refugee definition has been stretched by the Organization of African Unity (“OAU”) and the Cartagena Convention, in an attempt to provide protection for refugees fleeing larger events than individual persecution. However, even this expansion of the definition does not meet the ever-expanding needs of climate refugees who still very much feel the effects of displacement, regardless of the basis for that displacement.
The OAU was the first regional Convention to expand the definition of a refugee. The:
term “refugee” shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.[xxvi]
On its face, this definition should accommodate a climate ‘event’ like a hurricane or a flood. But it still does not seem to account for slow onset climate change, such as increased salinity or rising sea levels. Furthermore, in application the OAU definition is primarily geared towards large social events like civil war and the repercussions therein. Climate issues have been taken into account under the OAU to some degree but, generally, like the 1951 Convention definition, only when they include “nexus dynamics.”[xxvii]
The second expansion of the definition happened at the Cartagena Convention and:
includes among refugees, persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.[xxviii]
This expansion comes the closest to protecting climate refugees. For example, following the 2010 earthquake in Haiti, Haitian refugees used the Cartagena Convention to argue for asylum.[xxix] Many of these claims succeeded under a humanitarian argument that focused on the impact of the earthquake on displaced Haitians rather than particularized persecution executed by the state or an individual.[xxx]
This is important because it illustrates the kind of broad, social, humanitarian thinking that will likely be necessary to adequately protect climate refugees. However, the 2010 earthquake is still the only time in the modern era that this argument has been successful at such a large scale and it will likely be contested as these impact claims become commonplace. Furthermore, the Cartagena Convention is a limited expansion in South America that does not extend to places like Bangladesh.
CONCLUSION
As this paper shows, there is often a tension in the way refugee status is applied between the individual status of an asylum seeker and the social imperative to protect human dignity. When definitions become too narrow—as to list permissible grounds—it becomes easy for certain people to fall through the cracks. The refugee definition has lost touch with its intended purpose when it must be stretched so far that it breaks in order to grant asylum to folks fleeing climate disaster. Therefore, a great need exists for new safety nets and protections to replace the piecemeal apparatus that climate refugees currently have to stitch together to gain back human dignity.
As climate change begins to ravage more and more communities, it also takes on a human face. In order to protect human rights, it is increasingly important to consider what our intention is as a global community. Whether we wish to prioritize a narrow view of refugee protection that focuses on the perpetrator of harm or throw open the doors and accept the effects of harm experienced be people as a basis for protection. It may be that climate refugees have to take a note from the UNHCR and stop using the term “refugee” altogether. And perhaps, to their benefit, a wholly different mechanism must be developed that is flexible enough to account for the variety of harms that climate change so often creates.
ALL IMAGES TAKEN BY AUTHOR ON A TRIP TO KUSHTIA, BANGLADESH IN FEB. 2014:
Dharma grew up New Mexico, on a piece of property that borders one-hundred acres of BLM land. At 11, she spent 6 years attending a boarding school in Amritsar, India, where she graduated from high school. Dharma then attended Mount Holyoke College, where she earned a B.A. in history and fine art in 2013. After graduating, she spent 6-months visiting 22 countries on six continents (including Bangladesh). She then moved to Portland, Oregon where she worked on the front lines for Greenpeace as an environmental activist.
Dharma now attends the University of New Mexico School of Law, where she is working towards the Natural Resource and Environmental Law certificate, is co-editor-in-chief of the Natural Resource Journal, was on the Environmental Moot Court team, and tutored for the Property I. In the summer of 2019, Dharma clerked for Kennedy, Kennedy & Ives, working mainly on plaintiff civil rights litigation. In 2020, she worked for the USDA (from her kitchen). In her free time (not during a pandemic), Dharma can be found at a hot-yoga studio, a poetry slam, coffee-shop, on an airplane to some foreign country, or exploring the local outdoors.
References:
[i] All statistics taken from: Environmental Justice Foundation (“EFJ”), Climate Displacement in Bangladesh, https://ejfoundation.org/reports/climate-displacement-in-bangladesh.
[ii] Id. The actual number of climate refugees is likely much higher
[iii] EJF, No Place Like Home–Bangladesh: Land of Rivers, https://ejfoundation.org/films/bangladesh-land-of-rivers.
[iv] EJF, Climate Displacement in Bangladesh, https://ejfoundation.org/reports/climate-displacement-in-bangladesh.
[v] Id. The number of people displaced by sea level rise, storms, cyclones, drought, erosion, landslides, flooding, and water salinization has not been otherwise seen in the modern era.
[vi] Id. Between 1,000-2,000 people move to Dhaka every day (largely due to the changing environment).
[vii] Id.
[viii] 1951 Convention relating to the Status of Refugees; 1967 Protocol relating to the Status of Refugees; See INS v. Luz Marina Cardoza-Fonseca, 480 U.S. 421 (1987) (defining a refugee as any person outside of their country… who is unable or unwilling to return to, and is unable or unwilling to avail… of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.); Contrast with UN Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577, Art. 1(2) (defining a refugee as an individual 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 his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…”)
[ix] See Sale v. Hatian Centers Council, 509 U.S. 155 (1993).
[x] See Tatiana Pavlova v. INS, 441 F.3d 82 (2d Cir. 2006).
[xi] EJF, Climate Displacement in Bangladesh, https://ejfoundation.org/reports/climate-displacement-in-bangladesh.
[xii] Poppy McPherson, The dysfunctional megacity: why Dhaka is bursting at the sewers, THE GUARDIAN, https://www.theguardian.com/cities/2018/mar/21/people-pouring-dhaka-bursting-sewers-overpopulation-bangladesh
[xiii] EJF, No Place Like Home – Bangladesh: Land of Rivers, https://ejfoundation.org/films/bangladesh-land-of-rivers.
[xiv] Criteria for Determining Refugee Status (Geneva, 1979) (explaining that fear is considered well-founded if it is establish, to a reasonable degree, that continued stay in the country of origin has become intolerable for the reasons stated in the definition, or it would be, for the same reasons, intolerable to returned).
[xv] See INS v. Luz Marina Cardoza-Fonseca, 480 U.S. 421 (1987).
[xvi] 8 C.F.R. §§ 1208.13(b)(3), 1208.16(b)(3).
[xvii] Id.
[xviii] See Hathaway, The Law of Refugee Status at 104-105 (1991).
[xix] See Djordje Kovac v. INS, 407 F. 2d 102 (1969).
[xx] Id.; Dunat v. Hurney, 297 F. 2d 744 (1961).
[xxi] Poppy McPherson, The dysfunctional megacity: why Dhaka is bursting at the sewers, THE GUARDIAN, https://www.theguardian.com/cities/2018/mar/21/people-pouring-dhaka-bursting-sewers-overpopulation-bangladesh
[xxii] 1951 Convention relating to the Status of Refugees; 1967 Protocol relating to the Status of Refugees.
[xxiii] UNHCR Social group guidelines at ¶ 23.
[xxiv] Climate change and disaster displacement, UNHCR, https://www.unhcr.org/en-us/climate-change-and-disasters.html (“The term “climate refugee” is often used in the media and other discussions. However, … Climate change affects people inside their own countries, and typically creates internal displacement before it reaches a level where it displaces people across borders. There may be situations where the refugee criteria of the 1951 Convention or broader refugee criteria of regional refugee law frameworks may apply, for example if drought-related famine is linked to situations of armed conflict and violence–an area known as “nexus dynamics.” Regardless, the term “climate refugee” is not endorsed by UNHCR, and it is more accurate to refer to “persons displaced in the context of disasters and climate change.”)
[xxv] See Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987).
[xxvi] OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, Art. I(2), (June 20, 1974) https://www.unhcr.org/en-us/about-us/background/45dc1a682/oau-convention-governing-specific-aspects-refugee-problems-africa-adopted.html (emphasis added).
[xxvii] Sanjula Weerasinghe, In Harm’s Way: International protection in the context of nexus dynamics between conflict or violence and disaster or climate change, UNHCR, 38-58 (Dec. 2018), https://www.unhcr.org/5c1ba88d4.pdf.
[xxviii] Cartagena Declaration on Refugees, Art. III(3), (Nov. 22, 1984) http://www.refworld.org/docid/3ae6b36ec.html (emphasis added).
[xxix] Sanjula Weerasinghe, In Harm’s Way: International protection in the context of nexus dynamics between conflict or violence and disaster or climate change, UNHCR, 60-86 (Dec. 2018), https://www.unhcr.org/5c1ba88d4.pdf.
[xxx] Id.
