COVID-19 and Climate Refugees: The Need for Hybrid Law Approach
Climate refugees disproportionately face the impact of the pandemic and a “hybrid law approach” is necessary.
As the world is grappling with the chaos brought about by COVID-19, the global refugee crisis is predicted to exacerbate in the coming months. To mitigate this crisis, policymakers in different countries have implemented various measures for refugees - from relief packages to mapping protocols.
However, a category of people overlooked in these policy measures are “climate refugees.” This article contends that climate refugees disproportionately face the impact of the pandemic and a “hybrid law approach” is necessary to tackle this legal lacuna.
Studies have shown a direct linkage between increasing human displacement and climate change. The people forced to migrate due to climate change are often referred to as “climate refugees,” even though this term remains undefined under international law. The definition of a refugee, formulated in Article 1(A)(2) of the 1951 U.N. Convention Relating to Status of Refugees (“1951 Convention”), and as modified in the 1967 Protocol Relating to the Status of Refugees, has provided that the following criteria, when fulfilled, result in the claimant declared as a refugee:
- Well-founded fear of being persecuted
- For reason of race, religion, nationality, membership of a social group or political opinion
- Outside country of nationality/habitual residence
Overseeing legal protection from refoulement for only political refugees, the 1951 Convention does not extend protection to people displaced by climate change and there is no international consensus as to who would qualify as a climate refugee.
Climate Refugees During the COVID-19 Pandemic
According to latest reports, climate change displaces more people, both internally and across borders, than conflict and violence. The people relocating to slums in Dhaka due to coastal flooding, migrating people in West Africa owing to desertification of Lake Chad, displacement of Puerto Rican families due to Hurricane Maria, and relocation of coastal communities in Alaska and Louisiana owing to sea level rise are only a few examples of climate refugees.
Since such refugees are not explicitly included in the 1951 Convention, any aid provided by governments to support conventional refugees would not apply to them and thus, they face the consequences of the pandemic disproportionately, as compared to other refugees.
Refugees without proper documentation are often employed in informal sectors. With nationwide lockdowns in most countries, these people would be left unemployed with no savings, severely impacting their livelihoods.
Due to their undetermined status, climate refugees would be unable to access public healthcare facilities, which is already stressed during the pandemic. Since masks, sanitizers and PPE kits are in shortage due to acute demand, climate refugees would face difficulty in procuring them without the necessary documentations.
As climate refugees are constantly on the move to find a permanent country of asylum or trapped in camps until their applications are processed, their chances of contracting the virus are multiplied. Hardly any information is available on whether contact tracing and testing are conducted in such camps.
Further, as the crisis continues, education has completely shifted to online mode. Non-recognised refugees would be at a disadvantage in accessing quality education, especially as education largely dependent on technology.
The temporary suspension of all refugee status determination processes due to the pandemic harshly impacts climate refugees whose cases were pending before the UNHCR and those who haven’t registered with the UNHCR yet. Further, there have also been reports of countries using the pandemic as an excuse for xenophobic and discriminatory treatments.
The Way Forward: The Hybrid Law Approach
Given the specific deficiency in international law regarding climate refugees, the hybrid law approach (evolved from ‘policy-oriented jurisprudence’) can be engaged for their protection.
In brief, the hybrid law approach examines climate change from three perspectives - environmental law, human rights law and refugee law. An underlying cause can be found in environmental law (like a violation of environmental law principle) which brings about climate change. Climate change, in turn, impacts human rights law, due to its bearing upon the target society. This rights violation has a subsidiary effect of creating refugees who migrate to protect their human rights. Therefore, by employing a hybrid approach, the best legal instrument and principles can be located from the existing branches of international law instead of creating new legal obligations.
To illustrate the application of hybrid approach to the matter at hand, building on international human rights law, the basic inalienable rights of climate refugees arising from values such as dignity, fairness, equality, respect and independence can be protected.
By invoking the core principle of international refugee law - non-refoulement - States with climate refugees can be refrained from returning them to their country of origin or any country, where climate change has made it impossible to inhabit.
Further, the commitments extracted from international environmental law to have in place effective disaster management programs and efficient climate adaptation programs can be invoked to make a case for the protection of climate refugees during this pandemic.
The advantage of using hybrid law approach during a crisis is that, under the umbrella of international law, climate refugees could take advantage of principles and rights evolving from all three branches - environmental law, human rights and refugee law, notwithstanding the source of the issue. Further, there is enhanced protection afforded to climate refugees attributable to the application of three international instruments simultaneously as opposed to using them separately.
To conclude, many scholars have expressed reservations in amending the 1951 Convention to include climate refugees. Bearing this in mind, given the urgency of issues faced by climate refugees during this pandemic, they can be successfully protected employing the hybrid law approach – an amalgamation of elements from international refugee law, human rights and environmental law.
[Acknowledgment: The author is thankful to Prof. (Dr.) Cosmin Corendea, renowned for initiating and developing the concept of 'international hybrid law', for his guidance.]
M. Koshy Mammen is a B.A., LL.B. (Hons.) graduate from Jindal Global Law School, Sonipat. Apart from commercial law, he has a keen interest in international human rights law and refugee law.
This is an opinion piece and the views expressed are the authors’ own. The Quint neither endorses nor is responsible for them.
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