top of page
  • Siddharth Jasrotia

Extending Animal Rights Architecture to Climate Migrants: A Perspective

This article has been authored by Siddharth Jasrotia, III-year student at the Maharashtra National Law University, Mumbai, pursuing the B.A., LL.B. (Hons.) course.



Introduction


Even with the increased engagement of the United Nations High Commissioner for Refugees in the implementation process of the United Nations Framework Convention on Climate Change, the present international legal framework is of no avail to the persons who are rendered stateless as a result of climate induced displacements. By contrasting the legal obligations imposed on States regarding alien nonhuman animals (“animals”) with that of foreign human animals (“humans”), this Articles argues why the safeguards necessary for the protection of climate migrants should come from the international environmental law as opposed to the international refugee law.


Evolving Contours of Animal Rights


Jurisprudence regarding the legal rights of animals have seen a drastic change over the past few years. The earlier Roman Law doctrine, which regarded animals as ferae naturae, justifying their capturing in the international arena on the premise that they are creatures of the wild and whomsoever possess them shall acquire a title to them, was gradually replaced with the doctrine of ‘common heritage’, which purports that animals are a heritage that humans hold as a trust for the future generations. This understanding has paved the way for the concept of animal rights, under which animals are perceived as sentient beings. Even though the legal status of animals remains a grey zone between either legal properties or legal personhood, a global trend tilting towards granting legal personhood to animals can be visualised. International instruments such as the Convention on the Conservation of European Wildlife and Natural Habitats, the Convention on Biological Diversity and the Convention on the Conservation of Migratory Species of Wild Animals obligate States to protect and enhance the capacity of animals to resist, recover from and adapt to climate change.


Being cautious of the fact that climate change has led to trans-border migration of animals, the international community has now adopted additional safeguards for the protection of such animals. States are obligated to protect not only their ‘native species’ but also those ‘alien species’ which have now entered their territory as a result of climate-induced displacement or climate-induced range shifts. Where on the one hand, developments in national and international legal framework can be seen in regard to this changing trend of perceiving ‘what is alien?’ and ‘what is native?’ so as to ensure survival and protection of these animal species, an exact opposite trend can be viewed in the context of humans being displaced as a result of climate change.


Statelessness vis-a-vis Climate Induced Displacement


Under the current international legal framework, displaced persons do not constitute a juridical category, and hence, the terms such as ‘climate refugees’ or ‘climate migrants’ are merely descriptive terms and are not a status that confers an obligation on States. The 1951 Refugee Convention and the 1967 Protocol Relating to the Status of Refugees only recognize those persons as refugees who,


“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”


It can be analyzed from a bare perusal of this definition that persons displaced as a result of environmental factors do not fall within this definition of refugee, and hence, cannot claim protection guaranteed under the international refugee law. Human rights activists who argue for providing protection to such people under international law generally adopt El-Hinnawi’s definition of environmental refugees. He defined environmental refugees as,


“those people who have been forced to leave their traditional habitat, temporarily or permanently, because of a marked environmental disruption (natural and/or triggered by people) that jeopardized their existence and/or seriously affected the quality of their life.”


An attempt was made by Finland and Sweden to provide legal protection to environmentally displaced persons, but the same was withdrawn in response to a refugee crisis. Similarly, the Nansen Initiative by Switzerland and Norway, and the Kampala Convention adopted by Africa have shown certain strides in the direction of providing protection to environmentally displaced persons. However these instruments have adopted a very narrow interpretation of climate displacement by not taking associated results of climate change like a rise in seawater et al. into consideration. Even though the term ‘climate displacement’ has caught global attention, currently, there is no legal framework in place which addresses this issue.


The 2020 issue of Forced Migration Review provides a detailed and comprehensive analysis of how climate-induced migration has rendered thousands of people stateless in Mauritia, Western Sahara, Kenya, Ethiopia, Sundarbans Delta, Mongolia, Somalia et al. Statelessness or Worldlessness, as Hannah Arendt calls it, is a staunch critique of the universal nature of Human Rights as envisaged under the international law. Stateless persons are deprived of the ‘right to have rights’. Where in theory, human rights activists argue that an individual possesses rights by virtue of her being a member of the human community, this practical problem of statelessness shows how the absence of State protection leads to the waiver of these rights. In the context of trans-border environmental displacement where the native State of displaced persons is unable to provide them protection and the current State is unwilling to provide them protection, the gravity of the problem is much higher as these persons cannot claim refugee in any country owing to the voids in the present international legal framework.


Natural / human triggered environmental disruptions that happened in the year 2020 itself, such as Covid-19, cyclones in the US, Caribbean and Fiji, flash floods in Afghanistan, Thailand, UK, Yemen and India, earthquakes in Papa New Guinea, Indonesia and Philippines et al. vividly exposed the dysfunctionality of political structures created by humans. It is in the face of events like these that the bare animal existence of humans holds high value, where irrespective of one’s race, religion or political opinion, everybody is affected alike. Hence, it is argued that where international law provides ‘unconditional’ protection to animals affected from climate change (probably because they do not identify with a particular race, religion, nationality, membership of a particular social group or political opinion), the inherent animalism of human beings must be recognized and respected in light of these changing climatic conditions, and similar protection must be advanced to humans. Therefore, in order to tackle the issue of statelessness in the context of climate change, an anthropocentric approach to environmental displacement is the need of the hour.


Conclusion


Instead of advancing the protection under the international refugee law from political refugees to climate migrants, it would be more beneficial if this protection is sourced under the international environmental law instruments such as the United Nations Framework Convention on Climate Change because of it being specific to changing climatic conditions, and under the human rights instruments such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights because the rights protected under these instruments are of universal nature, and will attract less repulsion from States.

2 views0 comments

Comments


bottom of page