Indian Council of World Affairs

Abstract: The significance of climate migration continues to grow in the current global scenario. The 1951 Refugee Convention has provided the primary framework for refugee rights for several decades. As the world changes and new issues come up, the broadening of the definition of a refugee as well as their rights has become crucial. This paper aims to advocate for the broadening of the scope of the Convention, with the case of Kiribati and New Zealand as an example. 

Introduction

The 1951 Refugee Convention was set up with the intention of defining the term ‘refugee’ and providing assistance and asylum to those who fled their nations fearing security threats post-World War 2. The term “refugee” was mainly socio-political in scope, referring to someone who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” A fundamental principle of the convention was “non-refoulement”, found in Article 33, which restrains countries from sending back refugees. The convention states that , “no one shall expel or return (“refouler”) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom.”^[i] Though there were some geographical and temporal changes that were brought through the 1967 Protocol, climate change is still not a part of this definition. Refugees from small island countries like Kiribati, who face major climate-related issues, were sent back to their own countries, stressing the significance of broadening the definition to fit in climate refugees as well.

Kiribati and the Case of Ioane Teitiota

Kiribati (Kiribas) is a small island country in the Pacific region, mostly composed of atolls (ring-shaped reefs formed of corals). These atolls barely rise above sea level, the highest point being just 8 meters, making them highly vulnerable to submersion.^[ii] It has a population of about 130,000 with most of the population engaged in fishing and handicrafts. Kiribati is estimated to be one of the first island countries to submerge, owing to climate change. The safety of its citizens, resettlement and proper refugee protocols has become a crucial topic of discussion at the state level.

An important person of interest in this case is Ioane Teitiota, a Kiribati citizen who did not qualify for New Zealand refugee status under climate concerns including lack of access to clean drinking water, sanitation etc, making him the first climate refugee of the world.^[iii] He was sent back claiming that there is no serious threat to his life. His deportation drew global attention to the critical issue of climate-induced migration. Kate Schuetze, a Pacific Researcher at Amnesty International, asserted that “Pacific Island states do not need to be under water before triggering human rights obligations to protect the right to life.”^[iv] Teitota’s case became a cornerstone for climate change refugee claims, sparking global debates about the status of climate refugees who have come to be known as “world’s forgotten victims”.

Need to Broaden the Scope

Although the 1951 Refugee Convention has served as the fundamental framework for refugee protection, which protected post-war as well as other refugees for several decades, the scope of 1951 Refugee Convention now has to be broadened. As the definition given to refugees is purely socio-political in scope leaving out climate concerns, it makes the protection of climate change victims difficult. Furthermore, the principle of non-refoulement does not apply in this case. The ongoing refugee convention failed to account for the safety of these victims who faced non-traditional forms of threat to their lives. In contrast to traditional refugees, climate change refugees lack basic human rights protections owing to the various socio-economic factors involved.^[v]                      

Prior to Teitota’s landmark case, there were a few similar instances involving  Australian Pacific Migration claims, where citizens of Tuvalu and Kiribati have attempted to claim humanitarian grounds to live in Australia, but they were unsuccessful. As seen in Teitota’s case, there was a lack of sufficient evidence and the feeling that climate-related events ( especially slow-onset events like sea-level rise) are not urgent in nature. Teitota’s petition was rejected seeing that the effects he was describing would only aggravate 10 or 15 years down the line. His case did not hold up even when taken to court. As a result, climate refugees continue to face a crisis as they do not get due justice for the basic human rights denied to them. The term ‘climate refugee’ has not yet been recognised under the 1951 Refugee Convention, which further undermines the legal backing that these refugees require. Countries other than Kiribati, like Tuvalu, Bangladesh, Maldives, India etc too are facing similar issues of climate crisis and refugee resettlement.

A deeper examination into the relationship between international refugee law and non-signatory States is imperative to make an educated opinion about the relevance of the 1951 Convention.^[vi] New Zealand being a signatory state and Kiribati being a non-signatory state must be considered parallelly. The Refugee convention was primarily Eurocentric with most of the founding countries being from the Global North, disregarding the needs of Global South countries. The Global North did not want to take up the responsibility of looking after the refugees from Global South countries and as a result did not agree to comprehensive protection- human rights based protection for all refugees alike. Countries like the Soviet union saw refugees as people who are “traitors to their own countries”. Stateless persons were excluded from the framework until 1960. Additionally, the refugees of non-mandate states, particularly non-European states, were given monetary assistance in terms of food or shelter and also in returning back to their own states, which was tightly controlled by the Western countries. As countries independently decide their guidelines for refugee protection and as the convention is not legally binding, some vulnerable countries like Kiribati are at a disadvantage as they may not be assured complete protection. ^[vii]

The 1967 Protocol introduced some changes that were increasingly being demanded by various states. The Eurocentric focus had to be changed as an influx of more mandate refugees ( from those states who did not accede to the convention) than convention refugees ( refugees fleeing from Europe from events before 1951) came up in places like Hungary, China, Algeria etc. There were temporal and geographical restrictions in the Refugee Convention, focussing on refugees affected by Europe before 1951 which changed only with the 1967 Protocol. Still the changes were not adequate enough to meet the needs of the refugee influx in developing countries.^[viii]           

It has been observed that Global South “rarely feed[s] back into scholarship on global refugee law and tends instead to be treated in isolation, often as an exception to the true international form of refugee law”.^[ix] Kiribati, being a part of the global South, faces this exact problem. Being one of the most climate-vulnerable countries, it faces the urgent need to find proper measures to support its citizens and the country’s culture even in the event of its complete submersion. Though sudden and slow onset events can be used as valid grounds for non-refoulement, these UNHRC rulings are not legally binding, highlighting the majority of the problems that climate refugees face.         

Two primary reasons have been identified to understand why climate change (even when it indirectly impacts someone’s health or life) is not the sort of thing that can fall under the UN’s definition of refugees: (1) the lack of an intentional actor and (2) its indiscriminate nature.^[x] As there is no direct way to prove the effects of climate change and also no specific way to understand how it violates someone’s right to life, it becomes very difficult to incorporate it as a reason for migration. In addition to this, there is no internationally binding law to back up the climate refugee concerns. Teitota’s case could not hold in court because of the same reason. It became a wake-up call for the world to think of a broader definition as more countries are at the risk of climate related migration and the refugees need solid legal backing.

Conclusion

An examination of the relationship between non-signatory States and the 1951 Refugee Convention reveals that the 1951 Convention continues to structure States’ responses to refugees, influencing both signatory and non-signatory states alike. The climate migration debate has thus proven to be “complex labyrinth” where an individual’s agency is heavily dictated by their capacity for mobility or forced immobility.^[xi] Together the relationship between Kiribati and New Zealand, alongside landmark Ioane Teitota’s case has underscored the urgent necessity of developing new laws and policies for climate-induced displaced persons. Broadening the term ‘refugee’ in the 1951 Refugee Convention has become the need of the hour.

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*Rathika Lakshmi Gopalakrishnan, Research Intern, Indian Council of World Affairs, New Delhi
Disclaimer: Views expressed are personal. 

References

[i] UNHCR. “The 1951 Refugee Convention and 1967 Protocol Relating to the Status of Refugees | UNHCR.” UNHCR, 1967, www.unhcr.org/media/1951-refugee-convention-and-1967-protocol-relating-status-refugees

[ii] Macdonald, Barrie K, and Sophie Foster. “Kiribati | Culture, History, & People.” Encyclopædia Britannica (20 Jan. 2019) www.britannica.com/place/Kiribati (Accessed 18 Feb, 2019)

[iii] “Views Adopted by the Committee under Article 5 (4) of the Optional Protocol, Concerning Communication No. 2728/2016.” Tbinternet.ohchr.org, 23 Sept. 2020, tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f127%2fD%2f2728%2f2016&Lang=en

[iv] Amnesty International. “UN Landmark Case for People Displaced by Climate Change.” 20 Jan, 2020 www.amnesty.org/en/latest/news/2020/01/un-landmark-case-for-people-displaced-by-climate-change/

[v] Rajshree, Chandrika Mehta and Suman Luhach. “Displaced by Climate Change: Navigating Legal Framework for ‘Climate Refugees’ in International Environmental Law.” India Quarterly A Journal of International Affairs, vol. 81, no. 1 (Jan 2025) https://doi.org/10.1177/09749284241307928 ( Accessed February 12, 2025)

[vi] Janmyr, Maja. “The 1951 Refugee Convention and Non-Signatory States: Charting a Research Agenda.” International Journal of Refugee Law, vol. 33, no. 2  (June 2021), pp. 188–213, https://doi.org/10.1093/ijrl/eeab043 ( Accessed February 2, 2025)

[vii] Hathaway, Jake C. “A Forum for the Transnational Development of Refugee Law: The IARLJ’s Advanced Refugee Law Workshop.” International Journal of Refugee Law, vol. 15, no. 3 (1 July 2003) pp. 418–421, https://doi.org/10.1093/ijrl/15.3.418

[viii] Davies, Sara E. “Redundant or Essential? How Politics Shaped the Outcome of the 1967 Protocol.” International Journal of Refugee Law, vol. 19, no. 4 (17 Oct. 2007), pp. 703–728. https://doi.org/10.1093/ijrl/eem068

[ix] Bailliet, Cecilia M. “National Case Law as a Generator of International Refugee Law: Rectifying an Imbalance within the UNHCR Guidelines on International Protection.” SSRN Electronic Journal, vol. 29 (2014) https://doi.org/10.2139/ssrn.2545473 (Accessed November 15 2020)

[x] Kolmes, Steven A., et al. “What Lies Ahead: How Aid for Climate Refugees Must Focus on Human Rights and Human Health.” Environment: Science and Policy for Sustainable Development, vol. 64, no. 3 (26 Apr. 2022), pp. 7–16, https://doi.org/10.1080/00139157.2022.2046455

[xi] Das, Debojyoti, and Srija Basu. “Climate Change, Migration, and Internally Displaced Populations in the Indian Ocean Region – Evidence from South Asia and East Africa.” Journal of the Indian Ocean Region, vol. 19, no. 2 (4 May 2023), pp. 167–190, https://doi.org/10.1080/19480881.2023.2255386