Volume 49 Number 1 April 2019 ISSN 0378-777x

ENVIRONMENTAL
POLICY AND LAW
THE JOURNAL FOR DECISION-MAKERS

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This international journal has been created to en- Prof. Nicholas Robinson (USA), Pace University
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Environmental Policy and Law, 49/1 (2019)
24 Canotilho, J.J.G. 2010. “O princípio da sustentabilidade como princípio
estruturante do Direito Constitucional”. Revista de Estudos Politécnicos VIII(13):
7–18.
25 Ibid.
26 Amaral, A.C.C.Z.M. and Riccetto, P.H.A. 2017. “Responsabilidade civil e
sustentabilidade: normatividade em prol do meio ambiente”. Seqüência 75:
105–128.
27 Bittencourt, D.R. and Marcondes, R.K. 2011. “Lineamentos da
Responsabilidade Civil Ambiental. Revista dos Tribunais, RT 740/53, jun. 1997”.
In: Milaré, E. and Machado, P.A.L. (Orgs) Direito Ambiental: Responsabilidade
em Matéria Ambiental – Coleção Doutrinas Essenciais, V. São Paulo: Editora
Revista dos Tribunais.
28 Mirra, A.L.V. 2011. “Princípios Fundamentais do Direito Ambiental.
Revista de Direito Ambiental, RDA 2/50, abr-jun/1996”. In: Milaré, E. and
Machado, P.A.L. (Orgs) Direito Ambiental: Fundamentos do Direito Ambiental
– Coleção Doutrinas Essenciais, I. São Paulo: Editora Revista dos Tribunais.
29 Herman Benjamin, A. 2015. “Constitucionalização do ambiente e
ecologização da Constituição brasileira”. In: Canotilho, J.J.G. and Leite, J.R.M.
(Orgs) Direito Constitucional Ambiental Brasileiro. 6ª ed. São Paulo: Saraiva.
30 Ibid.
31 Supra, note 24.
32 Sarlet, I.W. and Fensterseifer, T. 2011. “Breves considerações sobre os
deveres de proteção do Estado e a garantia da proibição de retrocesso em matéria
ambiental”. In: Milaré and Machado, supra, note 28.
33 Ibid.
34 Wolkmer, M.F.S and Paulitsch, N.S. 2013. “O estado de direito
socioambiental e a governança ambiental: ponderações acerca da judicialização
das políticas públicas ambientais e da atuação do poder judiciário”. Revista Novos
Estudos Jurídicos - Eletrônica 18(2): 256–268.
India
“Disappearing Earth”: The Impact of
R
Environment-Induced Migration on India and the World
O
by Kumarjeeb Pegui and Mitul Duttaii
The primary obligation to protect the basic rights of
TH
the people rests with the State of their nationality. But at
times, States have failed to protect these rights and hence
the people are compelled to migrate from their place of
origin or the country of their habitual residence. These
groups of socially, politically and economically
AU
vulnerable persons need international recognition of their
plight as their survival is often a concern of human rights
law within the international realm.
Of late there has been a process to identify a new
category of migrants – those who initiate the course of
forced migration from their place of origin due to the
impact of environmental degradation and climatic
changes. The environmental degradation has directly
affected the living conditions of these forced migrants in
their native lands to the extent that survival is rendered
extremely difficult or impossible. Norman Myers in his
report estimated that environmental refugees will soon
become the largest group of involuntary migrants.1 They
are the groups of people who have been compelled to
leave their usual habitat, temporarily or permanently,
because of marked environmental disruption including
natural and man-made events that jeopardise their
existence.
i Assistant Professor, Kalinga Institute of Industrial Technology (KIIT) School
of Law, Bhubaneswar.
ii Assistant Professor, KIIT School of Law.
63
35 Pazzaglini Filho, M. 2011. “Princípios constitucionais e improbidade
administrativa ambiental. Revista de Direito Ambiente, RDA 17/112, jan-mar /
2000”. In: Milaré and Machado, supra, note 28.
36 Herman Benjamin, A. 2011. “Responsabilidade civil pelo dano ambiental.
Revista de Direito Ambiental. RDA 9/5, jan-mar, 1998”. In: Milaré and Machado,
supra, note 27.
37 Cahali, Y.S. 2014. Responsabilidade Civil do Estado. 5ª ed. São Paulo:
Editora Revista dos Tribunais.
38 Supra, note 36.
39 Ibid.
40 Tartuce, F. 2011. Responsabilidade Civil Objetiva e Risco – A Teoria do
Risco Concorrente. Rio de Janeiro: Forense; São Paulo: Método.
41 Wedy, G. 2014. A Responsabilidade do Estado por Dano Ambiental e a
Precaução. Consultor jurídico, 30 June. Online at https://www.conjur.com.
br/2014-jun-30/gabriel-wedy-responsabilidade-estado-dano-ambiental.
42 Hammerschmidt, D. 2011. “O risco na sociedade contemporânea e o
princípio da precaução no direito ambiental. Revista de Direito Ambiental
31/136, jul-set 2003”. In: Milaré and Machado, supra, note 28.
43 Supra, note 26.
44 Leite, J.R.M. and Melo, M.E. 2007. “As funções preventivas e precaucionais
da responsabilidade civil por danos ambientais”. Revista Seqüência 55: 195–218.
45 Barghouti, C.L.R.C. 2015. Responsabilidade Civil Pelo Dano Ambiental
PY
Futuro. Monografia (Especialização em Direito Ambiental Nacional e
Internacional) Faculdade de Direito da Universidade Federal do Rio Grande do
Sul.
46 Souza, L.R., Hartmann, D. and Silveria, T.A. 2015. “Dano Ambiental e a
Necessidade de uma Atuação Proativa da Administração Pública. Veredas do
Direito”. Belo Horizonte 12(24): 343–373.
O DOI 10.3233/EPL-190128
C
Often these groups consist of indigenous people who,
with their reliance on natural resources for a livelihood,
end up being impacted socially and economically with
no alternative other than to flee the place of their habitual
residence. With the on-going devastation of the
environment and changing climatic conditions,
environment-induced migration has emerged as a major
humanitarian crisis in the present time which cannot be
ignored any longer.2
Through this paper, firstly the authors have attempted
to highlight the magnitude of the problem of climate-
induced displacement in the Indian context. In the second
part, they critically evaluate the existing international
legal framework in regards to the protection of
environment and climate-induced migrants, as well as
Indian legislation and judicial decisions, in an attempt to
highlight the practical realities in India and to contemplate
solutions to issues such as India’s role in closing
environmental protection gaps in the South Asian region.
They examine India’s own record of compliance with
international standards for the protection of refugees, and
the internally displaced in general, including
environmental refugees and migrants, in particular
keeping in view the lack of protection mechanisms for
environmental migrants crossing international borders
within the UN framework. This paper also analyses the
international environmental instruments relating to
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64 Environmental Policy and Law, 49/1 (2019)
climate change and their efficacy in providing solutions
to the issue of climate-induced migration. Finally, it
attempts to propose changes to the existing Indian legal
framework including a change in India’s approach to the
South Asian Association for Regional Cooperation
(SAARC) so as to provide a more balanced and efficient
way of protecting the environmentally displaced persons
within India and its borders.
Magnitude of the Problem for India
The nature of anthropogenic climate change is
unavoidable and the implications for the subcontinent in
general and India in particular are critical.3 According to
the estimates of the UN’s Global Environment Outlook
(GEO-6), in the category of population at risk from rise
in sea level by 2050 in Asia-Pacific, India ranked first
(40 million or 3 percent of its population) followed by
Bangladesh (25 million).4 It is estimated that if the
“business-as-usual” attitude as recorded under the present
trend of current global emissions continues, global
temperatures are set to rise by 4–5°C in the course of the
century, which will, as a consequence, trigger mass
migration from the “low elevation coastal zone” of the
subcontinent, with Bangladesh at grave risk of witnessingC
75 million displacements, a vast number of which are
predicted to migrate towards the urban centres of India,
straining the already severely over-exploited resources
caused by the predicted internal migration within India.5
R
In terms of the internal displacement of people within
India, issues of environmental management and policy
O
change, including rehabilitation and strict compliance
with building construction norms, need to be addressed
urgently so that unplanned and harmful encroachments
TH
on the natural environment, which already play a
significant role in further displacement of people, are
avoided in the future.6 On the agricultural front, keeping
in mind that the farming population in India represents
more than 263 million people, the Indian Government’s
AU
crop insurance scheme (Pradhan Mantri Fasal Bima
Yojana) launched on 18 February 2016 so as to protect
the investment of the farmers has, in reality, benefited
only a few and has not made much headway in the
reduction of climate-induced poverty and forced
migration to urban centres.7 However, with the
government’s initiative on the nationwide implementation
of irrigation infrastructure which may be viewed as a
positive step,8 it is now for time to tell if the
implementation itself is free of irregularities and
mismanagement.
Statistics and data show that the development and
economic activities of the State are by far the single
largest contributing factor in the process of internal
displacement of the population, displacing close to fifty
million persons who are categorised as “internally
displaced persons” (IDPs).9 In this context, one of the
most vulnerable groups in India are the Scheduled Tribes
constituting 8.6 percent of the population (104 million
according to the Census of India, 2011) as their
percentage in the IDP is disproportionally higher in
comparison to other groups.10
0378-777X/19/$27.50 © 2019 IOS Press
The apathy of the State towards the tribal peoples
residing in the forests in their natural environment was
well documented in the events leading to the Vedanta
mining operations at Niyamgiri, Odisha.11 The Saxena
Committee Report on the Niyamgiri mining held that
despite legal provisions guaranteeing the rights of the
tribal groups, the state of Odisha violated the same by
granting mining leases to Vedanta Limited.12
It is a recognised fact that the State’s pursuit of
economic gain has regularly led to the displacement of
native populations. A relevant question from the
viewpoint of an IDP due to climate change, however, is
whether the mechanism of economic policy
implementation for the persons affected by climate
change itself is an adequate benchmark to assess their
vulnerability for being displaced.
PY
A relevant example to illustrate this would be the
Majuli Island of Assam with a population of 167,304
people (according to the 2011 Census of India), which
has witnessed some reversal of the eroding of the land
mass in part due to the efforts of the State. With the
O
recurrence of yearly floods submerging the island during
the monsoon months, the wetlands are disappearing
along with the fertile lands due to the deposition of silt
and unproductive sand carried by the flood waters.13 This
cycle of flooding has critically impacted the main
occupation of the islanders (i.e., agriculture) with a
significant number of natives now migrating from the
island partly due to lack of economic alternatives and
also due to the improper implementation of government
schemes.14
While these tribal groups have borne the brunt of
climate-induced migration, other communities and
groups have also greatly endured the experience of
displacement from their homes.15 It is important as a first
step for Indian policy makers to recognise the concept
of climate migrants and provide a clear definition of the
same. There is also a pressing need for the initiation and
proper implementation of a law and policy framework
on climate-induced IDPs in India. Currently one area
wherein India’s participation is immediately required in
tackling climate-induced migration is to work on
improving relations with Bangladesh given the complexity
of their border relations with regard to water, and the
possibility of cross-border migration.16
Comparative Analysis of International
and Indian Laws in Relation to
Environmental Migration
Categorising Environmental Migrants as Refugees
Traditionally it was believed that human rights
protection was a matter of domestic jurisdiction.
However, with the expansion of international human
rights law, it is now a matter of international concern.
Therefore, protecting the rights of the displaced person
is the obligation of the concerned State as well as the
international community as a whole.17 The phenomenon
of displacement started gathering the attention of the
international community after the First World War.18
Environmental Policy and Law, 49/1 (2019)
Later, after the establishment of the UN and the adoption
of the Universal Declaration of Human Rights (UDHR),
the right to seek and enjoy asylum from persecution in
other countries was recognised as a human right under
paragraph 1 of Article 14 of the Declaration.19 In addition
to that, paragraph 2 of Article 13 of the UDHR, as well
as paragraph 2 of Article 12 of the International Covenant
on Civil and Political Rights, also recognise the freedom
of movement and the right to leave any country, including
one’s own.20
The formal source of the modern refugee protection
regime can be traced to the adoption of the 1951
Convention on the Status of Refugees.21 Under the
existing legal framework, displaced persons are classified
as Refugees and IDPs. Refugees are those who migrate
outside the country of their nationality or habitual
residence and Internally Displaced Persons are those
who are displaced within their own State. Also,
international migrants are further classified into two
categories, migrants and refugees. The term “refugee” is
generally used for those people or groups of people who
are compelled to flee their countries because of
persecution due to factors which are political, religious,
ethnic, cultural or social in nature. Here the displacement
is more coercive in nature since these groups of people
have no alternative but to flee. It is evident from past
experiences that the international community has
responded very swiftly and generously to the refugee
R
problem.
The international human rights regime has guaranteed
O
some basic rights like life, liberty, security etc. to these
groups,22 and the States receiving these refugees are
bound by the principle of non-refoulement,23 which
TH
means the receiving States are under an obligation not to
coerce refugees or asylum seekers to go back to their
country where they could be subjected to persecution.
The principle of non-refoulement is today recognised as
a principle of customary international law.24
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On the other hand, the term “migrant” is used for
those persons or groups who are moving or have moved
across an international border from their country of
origin or habitual residence voluntarily and the underlying
cause herein is more economic in nature. Here the
migration is not due to fear of persecution or
discrimination. The international community does not
recognise these groups as eligible for refugee protections,
and States are under no obligation to provide them with
asylum or to recognise them as refugees. In the last few
decades, due to the rapid swell in the number of displaced
persons and uncontrolled migration, countries that once
used to open their borders generously to refugees are
now locking down due to the fear of incurring open-
ended responsibilities, concerns of national security and
the fear of increasing organised crimes like terrorism,
trafficking, smuggling etc.25 States today are extremely
sceptical in granting refugee status to displaced persons
and hence they prefer a narrower definition of the term
“refugee”.
With the establishment of the UN after the Second
World War, the UN General Assembly created the office
65
of UN High Commissioner for Refugees (UNHCR). The
UNHCR is under a mandate to protect the rights of
refugees and to find durable solutions for them.26 Its
activities are based on the guiding principles set up in
the UN Charter and under the UDHR. The 1951
Convention on the Status of Refugees, as well as the
1967 Additional Protocol to it, are the main sources of
international refugee law. Article 1(A)(2) of the 1951
Convention defines “refugee” as an individual who is
outside his or her country of nationality or habitual
residence, who is unable or unwilling to return due to a
well-founded fear of persecution based on his or her
race, religion, nationality, political opinion, or
membership of a particular social group.
Once “refugee” status has been granted to displaced
persons by a State, the Convention guarantees them
PY
certain rights. The first and foremost right that is
guaranteed to the refugee under paragraph 1 of Article
33 of the Convention is non-refoulement which means
that the State cannot forcefully expel the refugee to the
frontiers of territories where he/she could be subjected
O
to persecution. The 1951 Convention also grants a
number of civil and political, as well as economic, social
and cultural, rights. It guarantees rights related to
C
freedoms of religion (Article 3); property (Article 13);
artistic rights and industrial property (Article 14);
association (Article 15); access to justice (Article 16);
employment (Article 17); and welfare, social security
and education (Articles 20–24). The receiving State,
however, is bound to guarantee these protections only on
the fulfilment of the criteria mentioned in the definition
of refugee. The procedure under the 1951 Convention is
known as the Refugee Status Determination Procedure,
whereby a person’s claim of asylum is verified.
In addition to the UN instruments, there are a few
regional instruments which address the refugee problem
to a certain extent. The Organization of African Unity’s
(OAU) Convention Governing the Specific Aspects of
Refugee Problems in Africa, 1969, adopted a broad
definition of refugees and extended the 1951 definition.27
The Cartagena Declaration on Refugees of November,
1984, states that beyond the definition of “refugee”
which includes the elements from the 1951 Convention
and the 1967 Protocol (or the 1969 OAU Convention and
General Assembly resolutions), a definition of refugee
must also encompass people who flee their State as their
lives, their safety or their liberty were endangered by a
massive violation of human rights.
If the requisite elements of the definition are analysed,
then, firstly, a refugee is a person who does not have a
nationality or is outside the country of his former usual
residence due to a well-founded fear of persecution. The
grounds of persecution are generally race, religion,
membership of a particular social group or political
opinion. Though the term “persecution” has not been
defined in normative terms in international refugee law,
it has been interpreted as systematic and widespread
abuse of the rights as defined in the basic human rights
instruments which demonstrate the failure and
unwillingness of the State to accord protection to its
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66 Environmental Policy and Law, 49/1 (2019)
people.28 Here, the abuse of human rights is inflicted on
groups linked with the above mentioned grounds of
persecution as a part of discriminatory practice by the
State actors. Secondly, the refugee is unable or unwilling
to return to the country of origin or habitual residence.29
Environmental migrants, however, are those who flee
their place of origin due to environmental events such as
a drastic change in climate and temperature, rise of sea
level, desertification, destruction of biological diversity,
flood, famine etc., which directly or indirectly affect
their living conditions and finally make survival difficult
within their place of origin. The pertinent question that
arises herein is whether environmental migrants fit into
the definition of refugees and whether they can claim the
protections which are guaranteed to the Convention
refugees? Whether their plight falls within the ambit of
persecution?
A plain reading of the definition of “refugee” reveals
that the grounds of persecution are mainly political in
nature. Environmental factors are not included as a
ground of persecution. Therefore, according to the
Convention, refugee status is accorded where migration
is involuntary i.e., where the migrant is forced to flee the
country of origin or habitual residence. A narrow C the principle of non-refoulement is a part of customary
interpretation of the term “forced” implies political force
when in fact the interpretation of the term “force” should
imply an external force which makes the survival of the
persons difficult or impossible, compelling them to flee.
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Environmental migrants in significant cases are
forced to leave their place of origin or usual residence
O
because of environmental disruptions which are man-
made and caused due to warfare or developmental
activities. At the same time, the disruptions could be
TH
natural and may occur spontaneously through natural
forces. For instance, the Soufriere Hills Volcano in the
Caribbean Island of Montserrat, which became active in
1995 after years of dormancy, made half of the territory
of Montserrat uninhabitable, ultimately forcing about
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two thirds of the population to leave the island.30 The
natural disruption of the environment can also take place
gradually such as the gradual degradation of the
atmosphere by emission of excessive carbon dioxide and
greenhouse gases leading to a rise in sea level and global
warming. According to a 2013 World Bank report, in the
South Asian region, the worst effects of global warming
will be seen in Bangladesh in the coming decades with
rising sea levels, a rise in average temperatures by 2°C,
extreme river floods and more intense tropical cyclones.31
This phenomenon is predicted to create outbreaks of
diseases and a drastic decline in agricultural productivity
resulting in mass migration from rural to urban areas.
Thus, environmental disruptions result in physical
danger or violation of socio-economic rights like food,
shelter, livelihood, health etc., which then act as an
external force that compels people to migrate. In these
cases, the State is not the perpetrator which has violated
the basic rights of its people but is unable to protect the
people for reasons which are beyond its control. Hence
to restrict the definition of refugees only to cases of
State-perpetrated persecution and to declare environmental
0378-777X/19/$27.50 © 2019 IOS Press
migrants to be in the same category as economic migrants
would ultimately result in depriving these people of the
basic protection of their rights under the international
refugee law regime.
The international human rights protection regime is
premised on recognition of the inherent dignity and
inalienable rights of all members of the human family
for maintaining justice and peace in the world.32 A sense
of responsibility lies with the international community in
recognising the basic rights of forced environmental
migrants.
Refugee Regime in India
India has witnessed various stages of refugee influx
after its independence in 1947 and since then has been
facing a significant challenge in maintaining a healthy
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balance between the traditional humanitarian approach
towards displaced persons and asylum seekers, and the
overall goal of maintaining peace and security within its
borders. India is not a Party to the 1951 Convention and
the 1967 Protocol. It is, however, party to the basic
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human rights instruments, and thus under a general
obligation to protect the rights of refugees.33 Moreover,
international law and hence India is under obligation to
not forceably deport the refugees to their country of
origin where they may be subjected to persecution.
Currently, there is no specific refugee-centric
legislation in India and hence refugees are treated under
the law applicable to aliens.34 The major law on aliens
in India is the Foreigners Act, 1946. This enactment
empowers the Central Government to regulate, restrict
and prohibit the arrival of aliens in India and their
presence and departure from its territory. The Act
includes punishments for aliens who contravene its
provisions. In addition, the Registration Act, 1939, deals
with the registration of foreigners entering, staying in
and departing from India; and the Passport Act, 1967,
empowers the government to impose conditions for
admission into Indian territory, to issue passports and
travel documents, and to regulate departures from India.
These enactments do not however differentiate between
aliens and refugees. Therefore, the possibility of refugees
being arrested by immigration authorities and being
prosecuted for entering India without a valid passport or
travel documents remains strong. Such action could
ultimately result in detention, interrogation and forced
deportation of refugees.
Though there has been an absence of specific
legislation, India has, in the past, protected the rights of
refugees. Some prominent examples include the
protection extended to Tibetan refugees, the Tamils from
Sri Lanka, refugees from Bangladesh, and the Chakma
and Hajong refugees residing in the north-eastern part of
India. Refugees in India are entitled to avail themselves
of the protection of certain fundamental rights guaranteed
in the Indian Constitution.35 Fundamental rights,
including the right to equality (Article 14), right to life
and personal liberty (Article 21), right to protection from
arbitrary arrest (Article 22), right to protection in respect
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of conviction of offences (Article 20), freedom of religion
(Article 25), and the right to approach the Supreme Court
for enforcement of fundamental rights (Article 32),36 are
available to non-citizens, including refugees. They are
also entitled to additional rights created under Article 21
which include right against solitary confinement, right
against custodial violence, and rights to medical
assistance and shelter.
The Indian judiciary has also, on multiple occasions,
dealt with refugee issues, and has played a significant
role in developing the body of refugee jurisprudence in
India. In the case of Louis De Raedt v. Union of India,37
the Supreme Court upheld the application of Article 21
of the Indian Constitution to foreigners and non-citizens.
The Court held that the guarantee of life and liberty as
provided for in the Constitution of India is applicable to
all human beings present within the territory of India
including non-citizens.
In the landmark case of National Human Rights
Commission v. State of Arunachal Pradesh,38 the
Supreme Court further recognised the rights of the
Chakma refugees in India. This case reflected on the
plight of the Chakma refugees who had migrated to India
from erstwhile East Pakistan due to environmental
disruptions created as a result of the construction of the
Kaptai Dam in the 1960s. These refugees came to India
and settled in Assam and Tripura and eventually gained
Indian citizenship. The number of refugees settled in
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Assam was huge at the time and the State Government
requested assistance from certain other States. Thereafter,
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in consultation with the former North East Frontier
Agency (now Arunachal Pradesh), about 4,000 Chakmas
were resettled in parts of the North East Frontier
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Agency.39 Gradually their numbers began to increase and
there were consistent demands for granting them
citizenship. Eventually the conflicts between the local
population of Arunachal Pradesh and the Chakma
refugees escalated, with reports of Chakmas being
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subjected to oppressive measures with a view to forcibly
expelling them from the state of Arunachal Pradesh. The
National Human Rights Commission (NHRC) received
several complaints regarding the violation of the human
rights of the Chakmas and finally the NHRC filed a
Public Interest Litigation under Article 32 of the Indian
Constitution, alleging the violation of fundamental rights
granted under Article 21 to the Chakmas. The case
involved two issues, firstly regarding conferring of
citizenship to the Chakmas and secondly regarding the
atrocities committed against the Chakmas by certain
sections of the population within Arunachal Pradesh.
The court in this case recognised the fundamental right
to life and liberty of the Chakmas and directed the
Government of Arunachal Pradesh to ensure that the
Chakmas living there were not ousted by any coercive
measures inconsistent with the law till a final settlement
was achieved on the issue regarding the conferment of
citizenship to the Chakmas.40 Again in 2015, in the
companion case of Committee for Citizenship Rights of
the Chakmas of Arunachal Pradesh v. State of Arunachal
Pradesh,41 the Supreme Court directed the Ministry of
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Home Affairs to grant citizenship to the Chakma and
Hajong tribals who had migrated to India in 1964–69 and
were settled in the State of Arunachal Pradesh.
In 1983, due to the huge influx of refugees settling
in Assam, the Government of India enacted the Illegal
Migrants (Determination by Tribunals) Act to prevent a
witch-hunt against “illegal migrants”. This was
exclusively applicable to foreigners in Assam, while
foreigners in the rest of India were covered under the
provisions of the 1946 Foreigners Act.42 The enactment
resulted in the creation of a tribunal which would
determine whether or not a person was an illegal migrant.
The constitutionality of this Act was challenged in the
case of Sarbananda Sonowal v. Union of India43 for
being arbitrary and unreasonable, and the Supreme Court
in this case struck down the Act and declared it
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unconstitutional. In another case of Namgyal Dolkar v.
Govt. of India, Ministry of External Affairs,44 the Delhi
High Court interpreted the Citizenship Act, 1955, and
held that the Act applied to all children born in India,
irrespective of the nationality of their parents. This
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judgment paved the way for thousands of Tibetans to
claim Indian citizenship. A similar decision was also
taken by the Karnataka High Court in the case of Tenzin
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Choephag Ling Rinpoche v. Union of India.45
IDPs under the UN Guiding Principles on
Internal Displacement
Paragraph 2 of the UN Guiding Principles on Internal
Displacement (GPID) as prepared by Francis M. Deng
in 199846 states:
For the purposes of these Principles, internally displaced
persons are persons or groups of persons who have
been forced or obliged to flee or to leave their homes
or places of habitual residence, in particular as a result
of or in order to avoid the effects of armed conflict,
situations of generalized violence, violations of human
rights or natural or human-made disasters, and who
have not crossed an internationally recognized state
border.
The significance of the definition of an IDP as
provided under the GPID is reflected in the scope for the
inclusion of persons forcibly displaced due to
environmental conditions which was missing from the
definition of a refugee as provided under the 1951
Refugee Convention which focuses on “race, religion,
nationality, membership of a particular social group or
political opinion”.47
Legal Framework Regarding IDPs in India
The issue of IDPs is becoming more prominent in
India due to various factors including political, economic
and environmental. India has not recognised the UN
GPID and has repeatedly expressed its reservations about
the guidelines on the ground of national sovereignty.
India claims that the rights recognised in the guiding
principles are already guaranteed as fundamental rights
under Part III of its Constitution and as IDPs are Indian
citizens, they are directly entitled to all constitutional
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68 Environmental Policy and Law, 49/1 (2019)
protections. Therefore, along with the basic Article 21
rights, they are also entitled to rights of equality and
non-discrimination guaranteed under Articles 14, 15 and
16. They are also entitled to freedom of speech and
expression along with the freedom of assembly, freedom
of association, freedom of movement and to practise
their profession, as guaranteed under Article 19 of the
Constitution of India. Furthermore, they are also entitled
to the socio-economic and cultural rights guaranteed
under the Directive Principles of State Policy. For
example, Article 39(a) of the Constitution directs the
State to secure its citizens with the right to an adequate
means of livelihood; 39(e) directs the State to ensure the
health and strength of workers; and 39(f) directs the State
to ensure the right of development of children and
freedom from any exploitation. Article 41 directs the
State to make effective provision to secure the right to
work, education and public assistance.48
There is no national IDP policy in India and the
responsibility for assistance to IDPs and their protection
is frequently delegated to the state governments within
India. The practices of assistance and rehabilitation vary
from state to state and so it is often alleged that India
fails to adhere to the UN GPID and other human rights C the circumstances of emergencies and national security
standards in responding to the needs of IDPs. Considering
that internal displacement in India can be classified
under various types, there is a need for a proper survey
and identification of the varying requirements of the
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displaced persons. On the basis of the results of this
analysis, their derogable and non-derogable rights and
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the extent of protection required can then be specifically
recognised. Thus, there is an urgent need for specific
legislation to acknowledge and protect the rights of the
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IDPs but it has been witnessed on multiple occasions that
the government lacked the political will to do so. The
Indian Judiciary has played a more positive role and has,
to some extent, interpreted the Constitution and
international law in favour of IDPs. In the case of P.K.
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Koul v. Estate Officer,49 the Delhi High Court dealt with
the issue of IDPs from Kashmir. The Court quashed the
eviction order passed by the government which required
the IDPs to vacate the government accommodation
where they lived as government servants. Here the Court
referred to international human rights instruments and
also various provisions of the UN GPID.
An Analysis of the GPID and the Fair Compensation
and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act
While the issues of climate change and environmental
migration are not adequately reflected in Indian policies,
addressing the issue of internal displacement is crucial
as the impacts of developmental projects on the
environment and internal displacement of native
populations are considerable.50 In this regard, an analysis
of the GPID reflects certain protections which may also
be conferred on climate-induced IDPs due to
developmental projects.
Principle 6 of GPID proclaims the right of the people
against arbitrary displacement including the right against
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displacement due to large-scale developmental projects,
which cannot be justified by public interest of an
overriding and compelling nature. Under Section 2 of the
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013
(LARR Act 2013), any acquisition of land by the State
depends on the process of “consensus-building”.51 Also
the implementation of “social impact assessment” under
Chapter II of the Act provides an important measure in
protection against arbitrary displacement.52 Further, a
provision on the process of environmental impact
assessment carried forth apart from the process of social
impact assessment (SIA) ensures that the process of
environmental clearance is independent from the norms
herein mentioned. However, despite the protection under
the SIA, the State can overlook the same53and this stands
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in contradiction to Principle 6 of the GPID.
Similarly, the process of consensus attainment within
the LARR Act may be withdrawn in circumstances
concerning emergencies or national security, including
emergencies as a result of natural calamities or other
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emergencies, with the consent of the Parliament.54 The
acquiring of land without the consent of the people during
as provided in the Act needs an explanation and since
this is not provided, the process is ambiguous and prone
to abuse by the State, although the provision for prior
need for exploration of all alternatives before displacement
of the native populations under Principle 7 of GPID is
further provided within the LARR Act as well.55
From the standpoint of an environmental migrant, a
necessary criticism of the GPID lies in the fact that the
Guiding Principles do not provide measures for
involuntary or forced migrations due to environmental
degradation. This is similar to the situation of the LARR
Act, which is limited by its scope and nature i.e., its
emphasis on land acquisition by the State.
One vital aspect of the GPID remains the recognition
of the rights of the indigenous people. Principle 9 of the
GPID provides particular obligations on the State to
provide protection to indigenous peoples, pastoralists,
minorities, peasants and groups with special dependence
on their land. This emphasis on the indigenous traits of
the people with attachment to their land which are inter-
generational in nature56 has been similarly reflected in
specific legal instruments of India57 which, in the opinion
of the authors, reflects a sense of identity for these people
who have not attained the proper political platform to
express their grievances. Furthermore, the duty on the
State enshrined under Principle 28 of the GPID to
establish complete participation of IDPs in the process
of planning and managing their resettlement or return,
reflects the acknowledgment of the need for the right to
self-determination and direct participation in matters
concerning their sustenance and livelihood.58
In reflection, while India has not ratified the GPID,
there remains a need for a deeper introspection on the
part of the State in addressing the rights of the IDPs. The
role of the Indian State in recent times has led to
uncertainties as far as the notion of protecting the
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environment and the people are concerned.59 The 2005
UN Global Commission on International Migration
report, “Migration in an interconnected world: New
directions for action”, acknowledges environmental
degradation and disasters as the driving forces of
migration, as a result of which in 2006, the Global
Migration Group was created to facilitate heads of UN
agencies in the preparation of a framework on migration
from the environmental perspective. However, the non-
inclusion of the United Nations Framework Convention
on Climate Change (UNFCCC) in the same, meant that
progress on this front under the banner of the UNFCCC
is limited, though a few UN agencies within the Global
Migration Group are initiating efforts to include climate-
induced migration in their programmes.60
Disaster Management Laws in India
In India, it is often seen that environmental disruptions
both natural and man-made occur frequently and are
handled on an ad-hoc basis, taking a toll on the socio-
economic development of the State. There is, therefore,
an urgent need to develop a systematic approach to deal
with the problem of environmental migrants. To this
effect, the government of India enacted the Disaster
Management Act, 2005, which aims to deal with disasters
in a proactive and holistic manner.61 The thrust of the Act
is not only to have a “relief-centric” approach but also to
focus on a systematic and multidimensional approach for
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strengthening the country’s preparedness for disasters
and mitigation and for developing a mechanism for
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emergency response. It has laid down an institutional
mechanism for effective disaster management by creating
the National Disaster Management Authority (NDMA)62
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at the central level, State Disaster Management Authority
(SDMA)63 at the state level, and District Disaster
Management Authority64 at the district or local level.
Section 11 of the Disaster Management Act 2005
mandates that there shall be a National Disaster
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Management Plan for the whole country which, firstly,
shall lay down the measures to be taken for prevention
of disasters and mitigation of their effects. Secondly, it
shall include the measures for mitigation with the overall
development plans. Thirdly, it should include measures
for adequate preparedness and capacity building for
effective response to disasters. Finally, it should allocate
roles and responsibilities to the different departments of
the government for achieving the above-mentioned
objectives of the Act.
In 2016, the NDMA came up with the National
Disaster Management Plan which is consonant with the
Sendai Framework for Disaster Risk Reduction to which
India is a signatory. The objective of the plan is to reduce
the risks to life, health and livelihood caused by disasters
(natural and man-made). For effective risk reduction, it
recognises the responsibilities of the State, local
authorities, private sector and other stakeholders.65 The
first part of the plan defines disaster, types of disaster,
disaster management, disaster risk reduction and the role
of institutions in risk reduction.66 The second part focuses
on understanding the risks and vulnerability associated
69
with the disasters. The plan provides for different plans
of action for different hazards (like flood, drought,
famine, etc.). It includes research and forecasting and
mapping the risk, identifying the hazard and vulnerability
assessment, and dissemination of warnings and
information.67 It aims to develop a strong disaster
governance mechanism which includes efforts to
mainstream and integrate the disaster risk reduction
measures, capacity development, allocate responsibilities
to all stakeholders including the central government,
state government, public authorities, civil servants,
media, private sector, civil society and others.68
In addition, the plan focuses on the financial aspect
which includes planning and allocation of funds for post-
disaster relief, followed by investment in reconstruction.
The funds for preparedness, relief and post-disaster
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reconstruction are allocated by the Government as a part
of its budgetary allocations.69 It also includes post-
disaster recovery, rehabilitation and reconstruction
strategies.70 The plan provides a general framework
wherein the roles of the government and other
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stakeholders are enumerated regarding post-disaster
restoration and also various essential and basic services.
C The plan can be divided into early, mid-term and
long-term strategies. For an effective recovery process,
it requires a qualitative and quantitative assessment of
the damage caused by the disaster. On the basis of the
assessment, the build-back plan has to be developed in
consultation with experts, civil society and the affected
stakeholders. The reconstruction plan should also focus
on certain issues like gender and equity concerns,
identification and protection of vulnerable groups,
recovery of the lives and livelihoods of disaster-affected
communities, natural resource conservation and
environmental protection, providing basic facilities like
housing, water and sanitation, transport, power,
communications, education, etc. The plan divides the
rehabilitation strategy into four groups i.e., physical
rehabilitation, economic rehabilitation, social
rehabilitation and psychological rehabilitation. The
physical rehabilitation focuses mainly on rebuilding
physical infrastructure such as houses, buildings, roads,
railways, water supply, electricity, and communication.
It also includes long-term strategies which focus on
development and reconstruction of watershed
management, canal irrigation, crop stabilisation, animal
husbandry, alternative cropping techniques, job creation
etc. Social rehabilitation, on the other hand, focuses on
helping vulnerable groups such as women, children and
elderly persons, by providing them with special support
to survive the damage caused by the disaster. The plan
also considers economic rehabilitation through restoration
of livelihoods and employment for those affected. The
plan further concentrates on issues of psychological
trauma caused by loss of property and people, and
espouses facilities for counselling, stress management,
psycho-therapeutic health programmes etc.
While on paper the law on disaster management
remains strong, its practical implementation is where the
challenge will lie for the Indian establishment.
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The UNFCCC and International Norms
The UNFCCC Green Climate Fund (hereinafter the
“Fund”), adopted at the UN Conference on Climate at
Durban, South Africa in 2011, aims at promoting climate-
resilient and low-emission development solutions and to
use the same for reduction in the emission of greenhouse
gases in developing countries. The commitment required
of the developed world is clarified in paragraph 7 of
Article 4 of the UNFCCC.71 With regard to the Fund
itself, a drawback in the structuring is reflected in the
mobilisation of the targeted funds, as it does not provide
a demarcation between a public fund and a private fund,
and provides a rather vague definition of a “variety of
sources” of finance as provided under paragraph 1(e) of
the Bali Action Plan.72 Critics have held that the existing
plans of investing US$100 billion by 2020 under the
Fund are inadequate.73 The biggest drawback of the Fund
from the perspective of this paper, however, is that it
fails to focus on climate migrants while providing the
objectives on sustainable development, the need for
which is recognised under international law.74
From the perspective of India’s leadership in solving
the crisis of forced climate migrations, a criticism lies in
the fact that, as of June 2018, India is yet to pledge C relocation and relief to persons displaced due to climate
monetary grants to the Green Climate Fund for initial
resource mobilisation.75 The working group of the Inter
Agency Standing Committee contemplates four causes
of climate-induced migration: hydro-meteorological
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extreme hazard events, environmental degradation and/
or slow onset of extreme hazard events, significant
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permanent losses in State territory as a result of sea-level
rise etc.; and armed conflict/violence over shrinking
natural resources.76 While the working group further
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helps in identifying the applicability of international law
to the cases of climate-induced migration, at the same
time it also highlights the potential gaps in international
legal frameworks which do not provide protection to
such migration.77 The categorisation of the causes of
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migration by the Inter Agency Standing Committee is
detailed and comprehensive and hence requires
incorporation into a strategy under international
cooperation for providing protection to cross-border
climate migrants under international law.
India’s membership of the UNFCCC and its complex
relationship with Bangladesh with reference to cross-
border migration in the present and the future means
India needs to take a position of leadership in filling the
gaps in the international legal regime that still exist for
climate migrants and also to make a meaningful
contribution to the Fund to help it meet the challenge of
environment-induced migration. An important solution
from India’s standpoint is taking the lead under the
platform of the South Asian Association for Regional
Cooperation (SAARC). Under the Cancun Adaptation
Framework adopted as part of the Cancun Agreements
at the 2010 Climate Change Conference in Cancun,
Mexico (COP-16/CMP-6) by the UNFCCC members, an
Advisory Group on Climate Change and Human Mobility
was initiated to provide technical support to the Parties
and to deliberate the issue of human mobility, at climate
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negotiations. However, not much headway was achieved
on this front as was evident in the discussions at the 2012
UN Climate Change Conference in Doha.
A significant aspect of the Cancun Adaptation
Framework was the focus on “sustainable management”
of natural resources while pursuing economic development
(as provided under paragraph 14(d)) and the need for
developed States to assist least developed States in their
developmental goals, under the notion of “differentiated
responsibilities and respective capabilities” (paragraph
14(a)).78 Most importantly, paragraph 14(f) of the
Framework emphasises cooperation between States in
the area of migration, planned relocation and displacement
induced by climate change as far as possible, at both
national and international levels. The paragraph, while
lacking a clear explanation of its emphasis on “regional”
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and “international”, implicitly implies or acknowledges
the existence of climate migrants beyond national
boundaries. The first draft of the Paris Climate Agreement,
drawn up at the UN Climate Change Conference (COP-
21) held in Paris in December 2015, mentioned the
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creation of a “climate change displacement coordination
facility”, the role of which would be to facilitate
change.79 However, the removal of this from the final
document as presented to COP-21 reflects the lack of
unity among the nations at the international level, in the
acknowledgment and facilitation of climate migrants
forced to leave their homes due to climatic changes.80
The inclusion of such a facility would have significantly
reflected the commitment of the UN to acknowledging
climate refugees on the world stage and possibly towards
the very definition of the term “climate refugee”. The
Preamble to the Paris Agreement document does
acknowledge the notion that “climate migrants” have
rights and that Parties should address the issue. However,
the interpretation of the import of such rights is left
unexplained in the document.
Paragraph 50 requests the Executive Committee of
the Warsaw International Mechanism for Loss and
Damage (LDM) associated with Climate Change Impacts
(a loss and damage mechanism established at UNFCCC
COP-19 in 2013) to establish a task force for developing
recommendations to prevent and control displacement as
a result of climate change. In this clause, however, the
lack of definition or explanation of “what constitutes
displacement” indicated a lack of uniformity in the
interpretation of the term “displacement” by the Parties
and led to further barriers in the achievement of the
objectives of providing rights to the displaced. An
analysis of paragraph 50 proves that the purpose of the
LDM is to facilitate the process of national adaptation
plans as provided for under the Cancun Framework.81
Further, a need for the creation of machinery for providing
technical support particularly to the least developed
countries is vital.82
In the South Asian region, where the issue of climate
migrants is a crisis looming large, the possibility of the
inclusion of a mechanism similar to the structure of the
climate change displacement coordination facility,83and
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the process of integrating national adaptation plans within
the framework of the SAARC, may provide a concrete
step in addressing the issue of unreported cross-border
climate migrations. The need for a structured mechanism
on control and management of climate-induced migration
is even more vital since international developments such
as the 2016 New York Declaration for Refugees and
Migrants and the Sendai Framework for Disaster Risk
Reduction 2015–2030, though seen as positive
developments in the process of defining climate migrants,
are also criticised for their failure to focus on the complex
nature of the drivers of forced migration in addition to
such migrations being caused as a result of climate
change and also for hardly any consideration for people
migrating in anticipation of gradual changes in climate.84
Recommendations: Implications for India/
Protection Gaps in South Asia
As discussed above, the severity of the issue of
internal displacement and cross-border migration in
general due to climate change from India’s perspective
needs immediate attention. In this context the authors put
forth the following recommendations.
India’s Role under SAARC
The SAARC Action Plan on Climate Change adopted
by the SAARC Ministerial Meeting on Climate Change
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at Dhaka, 3 July 2008, was seen as a highlight in the
attempts of the SAARC members to find solutions to the
issue of climate change and its impact on the populations
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of the region. Technology and knowledge sharing so as
to establish action plans revolving around climate change
within the region, with the focus being on activities at
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the national level, were some of the key points under the
Plan. In fact the notion of supporting the global
negotiating process under the UNFCCC as an objective
of the Plan along with planning methods for assessing
financing needs of the member nations in coping with
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the short, medium and long-term effects of climate
change, extends to India an important platform for taking
up a leadership role in technology sharing for the
formulation of national action plans of the respective
members along with financial investments by India for
ensuring better management of climate change impacts.
Need for a Definition of “Environmental Refugee”
within SAARC
While environmental factors can contribute to prompting
cross-border movements, they are not grounds, in and
of themselves, for the grant of refugee status under
international refugee law.
-UNHCR
The UNHCR holds that while the phrase “refugee”
is a legal term, the same is not true of the terms “climate
refugee” or “environmental refugee” and hence, neither
can be recognised under international law.85 However,
the need for a more robust and comprehensive definition
of the term “refugee” cannot be emphasised enough.
Climate change is real and there is an urgent need to
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evolve the current definition which does not take into
account the plight of the “environmental refugee”.
Though the UNHCR acknowledges that certain
migrant groups, who may not be protected under
international law as such, also require humanitarian and
other forms of assistance,86 the very act of pruning the
migrants compelled to leave their native lands due to
climatic and environmental factors from the recognised
international protection regime leaves such migrants
vulnerable to a possible denial of their basic human
existence.
In contrast to the stance of the UNHCR, the definition
of an IDP as provided under the UN GPID provides more
scope for the inclusion of persons forcibly displaced due
to environmental conditions, something that has been
missing from the definition of a refugee as provided
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under the 1951 Refugee Convention. While the definition
has indeed initiated the process of acknowledging climate
migrants, yet it remains confined to the limits of the
national boundaries of States. A definition for
“transborder” environmental refugees is also missing
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from the UNFCCC and in this regard the difficulty in
finding cooperation among the member States reflects
the general lack of a consensus-building mechanism
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within the UNFCCC at least when it comes to
acknowledging the existence of such refugees. However,
with respect to the SAARC region, the geographical
proximity of the member States coupled with the cultural
and socio-economic dynamics, as well as the levels of
development depicted by the term “developing nations”,
provide ample opportunity for the SAARC to introduce
a framework on climate change and mass movement of
humans across borders.
The “[consensus building through] unanimity”
process under the SAARC (as enshrined under paragraph
1 of Article X of the SAARC Charter) has proved that
arriving at decisions is rather difficult, particularly in
terms of the geopolitics in the region.87 There remains
the need for SAARC members to work collaboratively
to arrive at a consensus on the issue of climate change
and climate refugees, given the very complex dynamics
of mass human movement across the region that is
predicted, if immediate action is not taken. The first step
– to define “environmental refugee” – fulfils the first and
the very basic need i.e., acknowledgment of the
movement of people due to climatic change on a global
scale and hence with it the acceptance of the need to
legislate on the legal and technical aspects of the people’s
involvement in such migration.
Amendment to the LARR Act
The LARR Act 2013 legislated by the Indian
Parliament has several similarities to the GPID as it also
protects people from arbitrary removal at the hands of
the State machinery. However, the Act itself is not free
from discrepancies. As discussed earlier, the process of
reaching consensus within the LARR Act may be
withdrawn in circumstances involving emergencies or
national security, including emergencies due to natural
calamities, with the consent of the Parliament under
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Section 40. This needs a more in-depth explanation since
what constitutes an “emergency” or circumstance
concerning “national security” is a matter of subjective
interpretation, which cannot be resolved by using the
term “natural calamities”, although this comes close to
an explanation. Also, while the LARR Act 2013 is
limited by its scope and nature i.e., its emphasis on land
acquisition by the State, the Act needs a measure for the
protection of persons immediately residing outside the
areas acquired by the State and who are, in future,
vulnerable to displacement from their land as a result of
the environmental changes occasioned by the activities
of the State in the acquired areas.
Establishment of a Climate Change Displacement
Coordination Facility Within the Framework of a
SAARC Convention
A climate change displacement coordination facility
may be defined as a mechanism which facilitates support
during emergency relief in situations of climate-induced
displacements including assistance in matters relating to
the planning and organisation of migration and relocation
of persons displaced by climatic events as well as
provisions for compensatory measures such as financial
C citizenship. This approach raises a serious allegation i.e.,
aid and shelter to the displaced.
The possibility of the inclusion of such a mechanism88
and the process of integrating national adaptation plans
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within the framework of a SAARC Convention may be
a good solution to the problem of addressing the issue
of unreported cross-border climate migration across
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South Asia which in itself will provide a solution to the
illegality of environmental migrants vis-à-vis refugees,
as in the case of the former now the availability of legal
TH
norms accepting or acknowledging their legal status has
been concretised.
Approach and Attitude in the
AU
Indian Context
As a non-party to the 1951 Refugee Convention and
the 1967 Protocol, India has dealt with the issues of
refugees on a bilateral basis. The determination of
refugee status thus takes place on a case-by-case basis.
India has hosted a large number of refugees since
independence without any specific law in place and, in
1971, when a massive flow of people came from war-
torn Bangladesh, India did show a compassionate
approach towards them. In India at present, there are
9,200 Afghan refugees, of which 8,500 are Hindus.
There are also more than 400 Pakistani Hindu refugee
settlements in various parts of India, mainly in Gujarat
and Rajasthan. Similarly, there are other groups which
comprise indigenous tribes such as Buddhist Chakmas
and Hindu Hajongs from Bangladesh. However, it is
evident that India’s approach towards the refugees is
highly influenced by the complexities of regionalism and
religious affiliations as well as the difficult relationship
between the executive and the judiciary.
Since 2012, there has been a huge influx of Rohingya
from Myanmar. Unlike other refugee influxes, India’s
0378-777X/19/$27.50 © 2019 IOS Press
attitude towards the Rohingyas has been sceptical from
the very inception. India was ready to deport the
Rohingyas on grounds of national security and there is a
petition pending before the Supreme Court filed by two
Rohingya immigrants, alleging that the Indian
government’s policy towards the Rohingyas violates the
customary international law principle of non-refoulement
as well as constitutional provisions. In this case, the
Court held that the deportation could not be done till the
case was decided conclusively, and added that there is a
necessity to strike a balance between the security of the
nation, its economic interests, and also the protection of
children, women, sick and innocent persons. Further, the
Court denied passing any interim order for providing
medical and educational facilities to the Rohingyas.
The Citizenship (Amendment) Bill, 2016, allows
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illegal migrants from certain minority communities
including Hindus, Sikhs, Buddhists, Jains, Parsis and
Christians (also Muslims, Jews or atheists) from
Afghanistan, Bangladesh and Pakistan to become eligible
for Indian citizenship. This implies that illegal migrants
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from these countries who do not belong to the above-
mentioned religious groups will not be eligible for
the differential treatment of illegal migrants on the basis
of their religion violates the right to equality guaranteed
under Article 14 of the Indian Constitution.
The notion of a domestic legislation dedicated to the
legal protection of national and transboundary migrants
is not unfamiliar.89 However in India’s case no legal
framework defines the terms “refugee” or “IDP” or for
that matter provides any concrete protection to these
groups.
In Finland, in a stark contrast to the current practices
in India, the Aliens Act 2004 (Finland)90 provides a
model of domestic legislation providing basic legal and
sustenance rights to the refugees. Its process of legal
recognition of refugees and forced transboundary
migrants within the State of Finland provides certain
lessons for the world community including India as far
as the acknowledgment of forced transboundary
migration is concerned. Section 88a of the Act makes
provisions for the issuance of residence permits on
humanitarian grounds to aliens in Finland provided they
are unable to return to their countries of habitual residence
or origin due to the security situation or an environmental
catastrophe such as armed conflict or a poor human
rights situation. 91
Under Section 90 of the Act, Finland’s commitment
to the resettlement of refugees (as defined by the
UNHCR) and other aliens in need of protection within
the Finnish State, under a “refugee quota” system decided
according to grounds mentioned in the State budget each
year, is reflected. As noted above, a simple reading of
the UNHCR definition of “refugee” makes it amply clear
that the term excludes forced migrants of environmental
disasters but given the fact that Section 9092 also focuses
on “other aliens”, a term not particularly limited to the
confines of UNHCR’s definition of a refugee, it may be
inferred that technically the term may include
Environmental Policy and Law, 49/1 (2019)
environmental refugees as well. Further, under Section
109 of the Act, temporary protection for a period of three
years is extended to aliens requiring protection due to
their inability to safely return to their home country or
country of permanent residence because of massive
displacement of people in the particular country or its
neighbouring areas as a result of an armed conflict, some
other violent situation or an environmental disaster. An
analysis of the Aliens Act 2004 thus reflects a clear
intention on the part of the Finnish legislature to provide
both residence permits and temporary stay to aliens and
forced migrants living in the country provided they are
unable to return to their country of residence as a result
of environmental catastrophes or environmental
disasters.93
In the cases of the IDPs, India’s failure to introduce
a statutory law for the protection of IDPs, given that the
single largest contribution to the displacement of people
in India comes from State infrastructure development
activities, raises further questions over India’s law and
justice track record.94
On the global stage, the preamble of the African
Union Convention for the Protection and Assistance of
Internally Displaced Persons (Kampala Convention) of
22 October 2009 in Africa recognised the UN GPID, and
paragraph 2 of Article 3 provided for State Parties to the
Convention to incorporate the obligations tasked on their
part within the Convention into their own domestic laws
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through amendments as well as enactments of legislative
documents for providing protection and assistance to
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internally displaced persons under the norms of
international law. Paragraph 4 of Article 5 concentrates
on IDPs while substantiating the responsibilities of the
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concerned States as provided under Article 3 for initiating
measures for assistance and protection in matters relating
to displacement in light of natural or human-made
disasters, including climate change.
Kenya, while not a signatory to the Kampala
AU
Convention, has enacted the Prevention, Protection and
Assistance to Internally Displaced Persons and Affected
Communities Act, 2012, which aims at giving effect to
the UN GPID and the Great Lakes Protocol on the
Protection and Assistance to Internally Displaced
Persons. The legislation also requires achievement of
durable solutions to the issue of internal displacement of
persons through measures such as creating an atmosphere
for the displaced persons for a voluntary and informed
choice to sustainable integration in another part of
Kenya, sustainable local integration in areas of refugee
settlements or sustainable re-integration at the place of
origin itself.
These legal frameworks provide certain concrete
legal measures which may provide a valid legal
foundation for filling the law and policy gaps in India.
At present, in the absence of such measures, the Indian
judiciary has, to an extent, initiated a process for the
bridging of these gaps.
The forced exodus of the Chakmas in the 1960s from
the Chittagong hill tracts in today’s Bangladesh towards
the north-eastern part of India was in fact primarily
73
caused by environmental disasters created as a result of
the construction of the Kaptai Dam which then displaced
one million tribal people in the area, of whom the
Chakmas made up 70 percent.95 The event is significant
in itself since it displays the fact that any classification
of the Chakmas residing in India on the basis of the
definition of a refugee as provided under the 1951
Refugee Convention has been avoided and hence, in
effect, the Chakmas who entered India during the 1960s
as environmental migrants were also regarded as refugees
in India.
While the probability of recognising environmental
migrants entering India from the bordering States as
international refugees remains strong, yet the lack of a
valid legal framework on the domestic and the regional
front (SAARC) puts a mark of uncertainty on India’s role
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in the process of recognising refugees in general and
environmental refugees specifically. The lack of a legal
definition for environmentally displaced IDPs within
India only aggravates the issue of their disenfranchisement
from rights and self-preservation, particularly so in the
O
cases of State-sponsored environmentally exploitative
projects with their tendency to uproot people from their
native lands.
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Concluding Remarks
It can be observed that refugee protection in India is
currently exercised on a case-by-case basis and is often
characterised by the differential treatment of refugees.
As a sovereign State, India needs to create a balance
between protecting the State’s interest of national
security and its humanitarian obligations. Further, India
needs a clear-cut policy on refugees in general and
environmental refugees in particular along with playing
a strong leadership role at SAARC96 to ensure more
systematic management of people involved in border
crossings across the South Asian States. India will also
need to concentrate on providing a transparent system
for the implementation of its welfare policies and
schemes developed around disaster management and
relief for both IDPs and migrants entering its borders
through neighbouring States. The creation of a climate
change displacement coordination facility within the
framework of the SAARC will depend on India’s ability
to appease the member nations on the issue of climate
negotiations and the issue of human mobility within the
SAARC States. A key element here may just lie in
India’s willingness to share technological tools and
information including the creation of environmentally
sustainable infrastructure across the SAARC region in
line with the UNFCCC’s norms. One must keep in view
the complexities and the extreme possibilities of a
future outbreak of forced environmental migrations
within the SAARC in general and specifically between
India and Bangladesh. That said, India’s own
commitment to the process of redressing the issue of
climate change and mass human migration within the
South Asian region requires an urgent and serious
approach.
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74 Environmental Policy and Law, 49/1 (2019)
Notes
1 Myers, N. 1997. “Environmental Refugees”. Population and Environment
19(2): 167–182. Online at http://www.jstor.org/stable/27503569.
2 Ibid., at 181.
3 Hijioka, Y., Lin, E., Pereira, J.J. et al. 2014. “Asia”. In: Barros, V.R. et al.
(Eds) Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part B:
Regional Aspects. Contribution of Working Group II to the Fifth Assessment
Report of the Intergovernmental Panel on Climate Change. New York: Cambridge
University Press. Online at https://www.ipcc.ch/site/assets/uploads/2018/02/
WGIIAR5-PartB_FINAL.pdf.
4 UNEP. 2016. GEO-6 Regional Assessment for Asia and the Pacific, at 32.
Online at https://uneplive.unep.org/media/docs/assessments/GEO_
ASSESSMENT_REPORT_ASIA_Wam.pdf.
5 Chella Rajan, S. 2008. “Blue Alert: Climate Migrants in South Asia: Estimates
and Solutions. A Report by Greenpeace”, at 10–11. Online at www.greenpeace.
org/archive-india/Global/india/report/2008/3/blue-alert-report.pdf.
6 Joshi, R. 2017. “In Rebuilding Kedarnath, a New Disaster in the Making”.
The Wire, 1 November. Online at https://thewire.in/193252/kedarnath-temple-
rebuilding-flood-lessons/.
7 Doshi, V. 2016. “India’s drought migrants head to cities in desperate search
for water”. The Guardian, 27 April. Online at https://www.theguardian.com/
global-development/2016/apr/27/india-drought-migrants-head-to-cities-in-
desperate-search-for-water.
8 Government of India, Ministry of Water Resources. 2018. “Accelerated
Irrigation Benefits Programme: Funding in the Last Two Years”. Online at http://
pib.nic.in/newsite/PrintRelease.aspx?relid=176390.
9 Negi, N.S. and Ganguly, S. 2011. “Development Projects vs. Internally
Displaced Populations in India: A Literature Based Appraisal”, at 6. Paper
presented at the ESF-UniBi-ZiF research conference on ‘Environmental Change
and Migration: From Vulnerabilities to Capabilities’, Bad Salzuflen, Germany,
5–9 December 2010.
10 Ministry of Tribal Affairs, Government of India. 2014. “Report of the High
Level Committee on Socio-economic, Health and Educational Status of Tribal
Communities of India”, at 259–260. Online at https://kractivist.org/wp-content/
uploads/2014/12/Tribal-Committee-Report-May-June-2014.pdf
C in India”. ISIL (Indian Society of International Law) Year Book of International
11 On 7 June 2003, Sterlite Industries (India) Ltd (a subsidiary of Vedanta
Resources Plc, later merged into Vedanta Limited) and the Government of
Odisha signed a Memorandum of Understanding granting Vedanta Resources Plc
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mining rights for bauxite in Niyamgiri, Odisha.
12 For instance the Committee held that sections 2(a), 2(h) and 5(c) of the
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest
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Rights) Act of 2006 were violated. It may also be noted that section 4(1) of the
Panchayats (Extension to the Scheduled Areas) Act, 1996 was overlooked by the
state machinery; for more details, see Saxena, N.C. et al. 2010. “A Report of the
Four Member Committee for Investigation into the Proposal Submitted by the
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Orissa Mining Company for Bauxite Mining in Niyamgiri”. Submitted to the
Ministry of Environment & Forests, Government of India, New Delhi. Online at
http://envfor.nic.in/sites/default/files/Saxena_Vedanta-1.pdf; and supra, note 6.
13 Sarma, A. 2014. “Landscape Degradation of River Island Majuli, Assam
(India) Due to Flood and Erosion by River Brahmaputra and Its Restoration”.
Journal of Medical and Bioengineering 3(4): 272–276, at 274–275. Online at
www.jomb.org/uploadfile/2014/0114/20140114111518927.pdf.
AU
14 Das, D. 2015. “Changing climate and its impacts on Assam, Northeast
India”. Bandung: Journal of the Global South 2: 26. Online at https://link.
springer.com/article/10.1186/s40728-015-0028-4#citeas. Further to the text
reference, more than 90 percent of the population identifies agriculture as their
primary occupation.
15 Supra, note 10.
16 Ibid., at 19.
17 Goodwin-Gill, G.S. 1989. “International Law and Human Rights: Trends
Concerning International Migrants and Refugees”. The International Migration
Review 23(3): 526–546. Online at http://www.jstor.org/stable/2546427.
18 Feller, E. 2001. “The Evolution of the International Refugee Protection
Regime”. Washington University Journal of Law and Policy 5: 129. Online at
https://openscholarship.wustl.edu/law_journal_law_policy/vol5/iss1/11/. The
problem of displacement and the rights of displaced persons was a matter of
considerable international concern after the significant turmoil caused as a result
of World War I in Europe, which led to the collapse of many governments
followed by a massive refugee crisis. At that time, the High Commissioner of
Refugees for the League of Nations in 1922 issued a passport called the Nansen
Passport to the stateless along with the Russian, Armenian and Turkish refugees,
as a travel document.
19 Universal Declaration of Human Rights (adopted 10 December 1948)
UNGA Res. 217 A(III) Article 14(1).
20 Ibid., Article 13(2); and International Covenant on Civil and Political Rights
(adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171
(ICCPR) Article 12(2).
21 Convention Relating to the Status of Refugees (adopted 28 July 1951,
entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention).
22 Ibid.
23 Goodwin-Gill, G.S. and McAdam, J. 2007. The Refugee in International
Law. 3rd Edition, at 31. Oxford: Oxford University Press.
0378-777X/19/$27.50 © 2019 IOS Press
24 Farmer, A. 2008. “Non-Refoulement and Jus Cogens: Limiting Anti-Terror
Measures that Threaten Refugee Protection”. Georgetown Immigration Law
Journal 23: 1–38. Online at https://www.hrw.org/sites/default/files/related_
material/Non-Refoulement%20and%20Jus%20Cogens%20Limiting%20Anti-
Terror%20Measures%20That%20Threaten%20Refugee%20Protection_0.pdf.
25 International Organization for Migration. 2018. World Migration Report
2018. Le Grand-Saconnex: IOM. Online at https://www.iom.int/wmr/world-
migration-report-2018.
26 Supra, note 23.
27 The OAU Convention Governing the Specific Aspects of Refugee Problems
in Africa (adopted 10 September 1969, entered into force on 20 June 1974) CAB/
LEG/24.3 Article 1. It defines refugees as “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”.
28 UNHCR. 1992. “Handbook on Procedures and Criteria for Determining
Refugee Status under the 1951 Convention and the 1967 Protocol relating to the
Status of Refugees”. HCR/IP/4/Eng/REV.1 paragraph 52. Online at http://www.
unhcr.org/4d93528a9.pdf.
29 Ibid.
30 Taylor, A. 2013. “Soufriere Hills Volcano”. The Atlantic, 3 May. Online at
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https://www.theatlantic.com/photo/2013/05/soufriere-hills-volcano/100509/.
31 The World Bank. 2013. “Warming Climate to Hit Bangladesh Hard with Sea Level
Rise, More Floods and Cyclones, World Bank Report Says”. Press Release, 19 June.
32 Supra, note 19, Preamble, paras 1, 2, 5, 6 and 7.
33 Bhattacharjee, S. 2008. “India Needs a Refugee Law”. Economic and
Political Weekly 43.
34 The word “alien” appears in the Constitution of India (Article 22, para. 3
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and Entry 17, List I, Schedule 7), in Section 83 of the Indian Civil Procedure
Code, and in Section 3(2)(b) of the Indian Citizenship Act 1955, as well as in
the Foreigners Act 1946, the Registration Act 1908 as well as some other statutes.
35 Kumar Sinha, M. 2014-2015. “Legal Framework of Protection of Refugees
Humanitarian and Refugee Law XIV: 199.
36 Constitution of India, 1950.
37 (1991) 3SCC 544.
38 (1996) AIR 1235 SC.
39 Ibid.
40 Ibid.
41 Committee for C.R. of C.A.P. and Ors vs. State of Arunachal Pradesh and
Ors (17.09.2015 - SC): MANU/SC/1030/2015.
42 Supra, note 35.
43 (2005) SCC 665.
44 MANU/DE/3504/2010.
45 High Court of Karnataka at Bangalore, Writ Petition No.15437/2013,
decided on: 7 August 2013.
46 UNCHR. 1998. “Report of the Representative of the Secretary-General, Mr.
Francis M. Deng, submitted pursuant to Commission resolution 1997/39.
Addendum: Guiding Principles on Internal Displacement”, at 11. E/CN.4/1998/53/
Add.2. Online at http://www.un-documents.net/gpid.htm.
47 Supra, note 21, Article 1(A)(2).
48 Article 41: Right to work, to education and to public assistance in certain
cases - The State shall, within the limits of its economic capacity and development,
make effective provision for securing the right to work, to education and to public
assistance in cases of unemployment, old age, sickness and disablement, and in
other cases of undeserved want.
49 High Court of Delhi at New Delhi, Writ Petition(Civil) No.15239/2004,
decided on: 30 November 2010.
50 Juss, S. et al. 2014. “The Environmental and Social Impacts of Dams:
Mapping the Issues”. Law Schools Global League Research Paper No. 4. Online
at http://dx.doi.org/10.2139/ssrn.2461490; Mithilesh Bhatt, 2013. “Environmental
Induced Internal Displacement: A New Challenge for Human Security Vis-a-Vis
Internal Security -- A Literature Based Appraisal”. OIDA International Journal
of Sustainable Development 6(10): 67–84. Online at https://ssrn.com/
abstract=2389778; and Board, R. 1994. “The Poor and the Environment: Friends
or Foes?” World Development 22(6): 811–822.
51 Under Section 2(2) of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act No. 3 of 2013)
for land to be acquired by private companies for developmental projects under
public purpose, a requirement of at least 80 percent of consent from the affected
families is fixed and in the event of public-private partnership projects under public
purpose use of land, 70 percent of consent from the affected families is fixed.
52 For instance, under Section 7(4), ibid., if the Expert Group decides that the
social cost or adverse impact of the project do not serve public purpose and hence
outweighs potential benefits then the Group shall make recommendation for the
abandonment of the project to the appropriate Government.
53 Proviso to Section 7(4), ibid.
54 Ibid., Section 40(1) and (2).
55 For instance, Section 41(1) and (2), ibid., reflects the notion that persons
living in “Scheduled areas” under the Indian Constitution should be evicted only
as a last resort when the State is faced with no possibility of an alternative.
Environmental Policy and Law, 49/1 (2019)
56 The working definition for indigenous people, as identified by José Martínez
Cobo, Special Rapporteur of the Sub-Commission on Prevention of Discrimination
and Protection of Minorities, states:
Indigenous communities, peoples and nations are those which, having a historical
continuity with pre-invasion and pre-colonial societies that developed on their
territories, consider themselves distinct from other sectors of the societies now
prevailing in those territories, or parts of them. They form at present non-
dominant sectors of society and are determined to preserve, develop and transmit
to future generations their ancestral territories, and their ethnic identity, as the
basis of their continued existence as peoples, in accordance with their own
cultural patterns, social institutions and legal systems. This historical continuity
may consist of the continuation, for an extended period reaching into the present,
of one or more of the following factors: (a) Occupation of ancestral lands, or at
least of part of them; (b) Common ancestry with the original occupants of these
lands; (c) Culture in general, or in specific manifestations (such as religion,
living under a tribal system, membership of an indigenous community, dress,
means of livelihood, life-style, etc.); (d) Language (whether used as the only
language, as mother-tongue, as the habitual means of communication at home
or in the family, or as the main, preferred, habitual, general or normal language);
(e) Residence in certain parts of the country, or in certain regions of the world;
(f) Other relevant factors.
See Martínez Cobo, J. 1987. Study of the Problem of Discrimination Against
Indigenous Populations: Volume V. Conclusions, Proposals and Recommendations,
paras 379–380. New York: United Nations.
57 For reference see the Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Act, 2006 (Act No. 2 of 2007), Section
5(c) and (d); the Provisions of the Panchayats (Extension to the Scheduled Areas)
Act, 1996 (Act No. 40 of 1996), Section 4(a); and the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013 (Act No. 3 of 2013), Section 41(3).
58 Kingsbury, B. 1992. “Self-Determination and ‘Indigenous Peoples’”.
Proceedings of the ASIL (American Society of International Law) Annual
Meeting 86: 383–394, at 387–390.
59 For instance, the violation of environmental and social norms by Vedanta
Limited, a subsidiary of Vedanta Resources Plc in the state of Odisha, India in
the Niyamgiri hills and the ineffectiveness of the State of Odisha in controlling
the same was well documented in the Saxena et al. report, supra, note 12, wherein
the Committee in its findings held that the Environmental Impact Assessments
R
(EIAs) in 2002 and 2005 for the Primary Mining Lease (PML) done by the
private companies in the form of TATA AIG risk management services, LTD
and Vinita Labs respectively were highly insufficient and also that the EIAs
O
disclosed that the operations had damaged the natural ecology and were further
detrimental to the local villages in terms of the dependency of the people upon
the areas under mining operation. See also supra, note 6.
60 Wilkinson, E. et al. 2006. “Climate-induced migration and displacement:
TH
closing the policy gap”, at 3 and 7. ODI Briefing. London: Overseas Development
Institution. Online at https://www.odi.org/sites/odi.org.uk/files/resource-
documents/10996.pdf.
61 The Disaster Management Act, 2005 (Act No. 53 of 2005).
62 Ibid., Section 3(1).
63 Ibid., Section 14(1).
64 Ibid., Section 25(1).
AU
65 National Disaster Management Plan, 2016, at 4.
66 Ibid., at 32.
67 Ibid., at 10.
68 Ibid., at 116.
69 Ibid., at 128.
70 Ibid., at 126.
71 UNGA Res. 48/189 (20 January 1994) UN Doc. A/RES/48/189, Article 4,
para. 7.
72 Sadat, A. 2011. “Green Climate Fund: Unanswered Questions”. Economic
& Political Weekly 46(15): at 23 and 24.
73 Ibid.
74 For instance, the human rights principles as enshrined under paragraph 87
of the Report of the Office of the UN High Commissioner for Human Rights on
the relationship between climate change and human rights (A/HRC/10/61), while
read along with paragraph 14(f) of the Cancun Adaptation Framework (FCCC/
CP/2010/7/Add.1, decision 1/CP.16), provide a base for the recognition of the
need for national, regional and international cooperation regarding adaptation
strategies for displacement, migration and relocation along with the need for
maintenance of human rights as “the human person is the central subject of
development”.
75 Green Climate Fund. 2018. “Status of the initial resource mobilization
process”. Meeting of the Board, 1–4 July 2018, Songdo, Republic of Korea.
GCF/B.20/Inf.05. Online at www.greenclimate.fund/documents/20182/1087995/
GCF_B.20_Inf.05_-_Status_of_the_initial_resource_mobilization_process.
pdf/8fed4c59-0f10-e4b1-589f-e36aa547af7a.
76 Informal group on Migration/Displacement and Climate Change of the
IASC. 2008. “Climate Change, Migration and Displacement: Who will be
affected?”. Working paper. Online at http://unfccc.int/resource/docs/2008/smsn/
igo/022.pdf.
77 Ibid.
75
78 UNFCCC. 2011. “Report of the Conference of the Parties on its sixteenth
session, held in Cancun from 29 November to 10 December 2010. Addendum.
Part Two: Action taken by the Conference of the Parties at its sixteenth session”.
UN Doc. FCCC/CP/2010/7/Add.1. Online at https://unfccc.int/resource/
docs/2010/cop16/eng/07a01.pdf.
79 Displacement Solutions. 2015. “A Climate Change Displacement
Coordination Facility in the Paris Draft Agreement: Summary of facts”. 6
November 2015. Online at http://displacementsolutions.org/wp-content/
uploads/2015/11/Climate-change-displacement-coordination-facility.pdf.
80 Milman, O. 2015. “UN drops plan to help move climate-change affected
people”. The Guardian, 7 October. Online at https://www.theguardian.com/
environment/2015/oct/07/un-drops-plan-to-create-group-to-relocate-climate-
change-affected-people.
81 For instance, para. 14 of the Cancun Adaptation Framework (FCCC/
CP/2010/7/Add.1, decision 1/CP.16) invites participating States to increase
efforts on adaptation of action plans keeping in view the natural environment
while fulfilling the needs of specific national and regional development priorities.
82 Warner, K. et al. 2015. “National Adaptation Plans and human mobility”.
Forced Migration Review 49 (Disasters and displacement in a changing climate).
Online at http://www.fmreview.org/sites/fmr/files/FMRdownloads/en/
climatechange-disasters/warner-kaelin-martin-nassef.pdf.
83 A Climate Change Displacement Coordination Facility could be used
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(mainly with support from the Developed Group of Nations to the Least
Developed Nations):
- in matters of emergency relief;
- in matters of organised and planned migration and relocation;
- in undertaking compensation measures among member States.
84 Supra, note 14.
85 UNHCR. 2008. “Climate change, natural disasters and human displacement:
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A UNHCR perspective”. Online at http://www.unhcr.org/4901e81a4.pdf.
86 UNHCR. 2007. “High Commissioner’s Dialogue on Protection Challenges
(11-12 December 2007). Theme: Refugee Protection, Durable Solutions and
International Migration. Chairman’s Summary, 12 December 2007”. Online at
C
http://www.refworld.org/docid/479744c42.html.
87 Behera, N.C. 2012. “SAARC and beyond: civil society and regional
integration in South Asia”, at 4–8. In: Rahman, S.H., Khatri, S. and Brunner,
H.-P. (Eds) Regional Integration and Economic Development in South Asia.
Metro Manila/Cheltenham and Northampton MA: The Asian Development Bank/
Elgar Publishing. Online at http://citeseerx.ist.psu.edu/viewdoc/download?doi=1
0.1.1.457.5722&rep=rep1&type=pdf#page=25.
88 Supra, note 79.
89 UNHCR. 2010. “High Commissioner’s Dialogue on Protection Challenges:
‘Protection Gaps and Responses’ (8-9 December 2010). Breakout Session 1:
Gaps in the International Protection Framework and in Its Implementation:
Report by the Co-Chairs”, at 4. Online at http://www.unhcr.org/4d09e47a9.pdf.
90 Finland Act No. 301/2004 of 2004, Aliens Act [Finland], 30 April 2004.
Online at www.finlex.fi/en/laki/kaannokset/2004/en20040301.pdf.
91 Ibid., Section 88a.
92 Section 90 of the Aliens Act [Finland] provides for a ceiling (refugee quota)
on the number of refugees admitted to Finland per year on the basic of the State
budget. It is important to note that while the process is named “refugee quota”,
other aliens in need of international protection may also be admitted as provided
under Section 90(1) which leaves the possibility for the inclusion of environmental
migrants.
93 The term “environmental disaster” as mentioned under Section 109 of the
Aliens Act [Finland] is broader than the term “environmental catastrophe” as
provided under Section 88a since the latter demands a severity level of the highest
magnitude which may often leave out the cases of temporary impact and lower
level of environmental damage and hence provides the Finnish State with a
broader option to include people hindered from returning to their country of origin
or residence due to environmental issues. It may also be noted that while Section
88a proposes a scenario wherein the magnitude of the issue is of the highest
degree, under Section 109 the magnitude of the issue remains of a lesser degree
and hence the protection in the latter is for a temporary period i.e., three years.
94 For instance, the Internal Displacement Monitoring Centre, Geneva
estimates that around 65 million people in India were displaced during the period
1950–2005 due to projects on dams, mines, power plants and airports, only a
fifth of whom have been resettled. Also, the Sardar Sarovar dam project under
the Narmada valley development project alone has displaced more than 320,000
people. For further reading, see Suchitra Mohanty, S. 2017. “Indian families
uprooted by dam win compensation after decades-long battle”. Reuters, 10
February. Online at www.reuters.com/article/india-landrights-court/indian-
families-uprooted-by-dam-win-compensation-after-decades-long-battle-
idUSL5N1FV1LE.
95 Samad, S. 1998. “State of Minorities in Bangladesh: From Secular to Islamic
Hegemony”. Country Paper presented at “Regional Consultation on Minority
Rights in South Asia”, Kathmandu, 20–22 August 1998. Online at https://mm-
gold.azureedge.net/Articles/saleem/secular_to_islamic.html.
96 Anderson, T. et al. 2016. Climate Change Knows No Borders: An
analysis of climate induced migration, protection gaps and need for solidarity in
South Asia, at 29. Johannesburg: ActionAid. Online at www.actionaid.org/sites/
files/actionaid/climate_change_migration_in_south_asia_web_version.pdf.
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 ENVIRONMENTAL
POLICY AND LAW
Abstracted/Indexed: Academic Source Complete; Business Source Complete (EBSCO);
CAB Abstracts; CSA Illumina; Database WasteInfo; EBSCO Databases; Ecolex; EMBIO;
Environment Abstracts; Environment Complete; GEOBASE; Google Scholar; Linkages
Update; MasterFILE; Microsoft Academic Search; PAIS International; Scopus; SD-Cite;
Vol. 49, No. 1, 2019 Ulrich’s Periodicals Directory; Water Resources Abstracts; Wildlife Review Abstracts
CONTENTS
1

Editorial
GLOBAL LAW AND POLICY DEVELOPMENTS
Stockholm Environmental Law Lecture Series
PY
– Accessible and Drinkable Tap Water: The Technology,
and Its Implementation in Indonesia 39
(Rima Yuwana Yustikaningrum)
– Gross Split: A New Contracting System in the

O
– The “Stockholm Environmental Law Lecture”: A New Indonesian Oil-and-Gas Sector 43
Lecture Series at Stockholm University 3 (Brigita P. Manoharai and Tri Hayati)
(Jonas Ebbesson) – International Certification as a Mechanism for
C
– Intergenerational Equity in a Kaleidoscopic World 3 Protecting the Human Rights of Indonesian
(Edith Brown Weiss) Coffee Farmers 49
UNFCCC COP-24 (Iman Prihandono and Fajri Hayu Relig)
R

– Paris Rules? 11
(Cleo Verkuijl and Harro van Asselt) NATIONAL LAW AND POLICY
O

Convention on Biological Diversity DEVELOPMENTS

– The 2018 UN Biodiversity Conference 19 Brazil
(Elsa Tsioumani) – Climate Change Policy in São Paulo: Fundamentals
TH

WTO based on Comparative Analysis 55

– Judicial Resolution of Trade and Environment (Kamyla Borges da Cunha and Fernando Rei)
Conflict – An Analysis 25 India
(Shri Sunil N. Bagade) – “Disappearing Earth”: The Impact of Environment-
AU

Induced Migration on India and the World 63

REGIONAL LAW AND POLICY (Kumarjeeb Pegu and Mitul Dutta)
DEVELOPMENTS Indonesia
Central Asia – Constraints on Enforcement of Environmental
– Legal Problems in Implementation of the Law Against Corporate Defendants 76
UN Convention to Combat Desertification 30 (Ismu Gunadi Widodo, J. Andy Hartanto,
(Zhanna Akshatayeva, Lazzat Yerkinbayeva, Eddy Pranjoto W. and Jonaedi Efendi)
Gulnar Aigarinova and Daniyar Saipinov) – Environmental Law Policy as an Approach to Achieve
Sustainable Development and Prosperity in an Era
of Regional Autonomy 83
ENVIRONMENTAL PAPERS FROM THE (Muhammad Akib, F.X. Sumarja and Heryandi)
MALAYSIA CONFERENCE ON “LAW, Poland
TECHNOLOGY AND THE IMPERATIVE – Tax Policy and Taxation of Renewables: Better Tax
OF CHANGE” Solutions to Enhance Production of Electricity from
Malaysia Conference Renewable Sources 88
– Conference Summary 35 (Mateusz Lewandowski)
– International Economic Law, International
Environmental Law and Sustainable Development:
The Need for Complementarity and Equal
Implementation 36
(Joel Niyobuhungiro)

Cover photo: Professor Edith Brown Weiss, major innovator in the field of international environmental law.
Photo from The Hague