Hastings Environmental Law Journal
Volume 24
|
Number 2 Article 9
1-1-2018
Colonial Fences Make Contentious Neighbors:
Policy, Law, and Climate Refugees in India
Abigail Blue
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Abigail Blue, Colonial Fences Make Contentious Neighbors: Policy, Law, and Climate Refugees in India, 24 Hastings Envt'l L.J. 331 (2018)
Available at: h<ps://repository.uchastings.edu/hastings_environmental_law_journal/vol24/iss2/9
331
Colonial Fences Make Contentious Neighbors:
Policy, Law, and Climate Refugees in India
by Abigail Blue
Background
Climate change poses a significant threat to the socioeconomic stability and
population health of India and the countries that border it. Pakistan, Bangladesh,
Bhutan, southern Nepal, Myanmar (Burma), and northern territories in the
Himalayan mountain range are experiencing increasingly frequent and severe
climate events.
1
Glacial floods have become a regular occurrence in the Himalayan
region with varying degrees of socioeconomic impact, ranging from the moderate
effects of lowered water quality and increased vector-borne disease to extreme
impacts, such as the destruction of villages, agricultural lands, roads, bridges,
hydropower, human lives, and property. With 15,000 glaciers and 9,000 glacial
lakes, the Himalayan mountain range—which stretches 2,500 km across Bhutan,
Nepal, Pakistan, India, and China—feeds nine perennial river systems in the region
and constitutes a lifeline for nearly 1.5 billion people downstream.
2
In the absence
of adequate national response systems and resources to mitigate the impacts of
climate events in the Himalayan region, environmental disasters and slow-onset
climate impacts on agriculture and livability create push factors that prompt large-
scale migration, both within countries of origin as well as cross-boundary
migration.
3
The Indian Law Commission is struggling to enforce the admittedly
With a BA in Economics and a Master’s in Public Administration, Abigail Blue
works for economic and social justice for refugees and migrants. She advanced climate
migration policy as a delegate in the UNFCCC; worked in refugee camps in India and Nepal;
passed legislation in Washington State; led an NGO providing reproductive rights for
incarcerated women; founded a research, policy and media firm; taught Sustainable
Entrepreneurship at the Evergreen State College; was the Deputy Director for Community
& Migrant Health Centers, where she expanded access to healthcare for tribes, seasonal
migrant farmworkers, refugees, and homeless; and, now works at UC Hastings College of
the Law.
1. P. Gupta, J. Sundaresan, R. Boojh & K.M Santosh, C
LIMATE CHANGE AND
HIMALAYA: NATURAL HAZARDS AND MOUNTAIN RESOURCES, 70–71 (Scientific Publisher
2014).
2. C
OMM. ON HIMALAYAN GLACIERS, HYDROLOGY, CLIMATE CHANGE, &
IMPLICATIONS FOR WATER SEC., NAT’L RES. COUNCIL, HIMALAYAN GLACIERS: CLIMATE
CHANGE, WATER RESOURCES, AND WATER SECURITY (Nat’l. Acads. Press ed., 2012).
3. Human mobility in the Context of Climate Change Adaptation, Disaster Risk
Reduction, and Sustainable Development Goals in the Hindu Kush Himalayas, P
LATFORM
ON
DISASTER DISPLACEMENT (Sept. 6, 2017), https://disasterdisplacement.org/human-
Hastings Environmental Law Journal, Vol. 24, No. 2, Summer 2018
332
deficient laws that govern in-migration; India’s border control policies and
practices ineffectively curb, let alone adequately manage, current immigration.
4
In
the absence of international, national, or regional-level legal and policy
frameworks to manage migration, India is likely to experience a substantial
increase in the unplanned immigration of climate migrants. This will perpetuate
the preexisting high levels of environmental risk, as well as the concomitant burden
of social exclusion and limited access to basic resources and governmental aid.
Substantial deficiencies remain in the interdisciplinary study of climate
change, development and adaptation planning, climate-induced migration, and
population health. National and international governmental bodies, NGOs, and
researchers alike tend to collect, analyze, and model data in disciplinary silos and
focus on development, economics, the environment, and social or humanitarian
services separately.
5
These spheres of study encompass interdependent factors that
influence the need to migrate, both internally within a country and across borders,
in response to climate change and high-intensity weather events. Climate migrants
are not currently recognized by international policy frameworks as “refugees” and
thus do not qualify for legal protections or humanitarian aid.
6
This lack of legal
designation further marginalizes climate migrants and results in substantial vacuity
of data on these populations. Nation-states worldwide have neglected to integrate
internal and cross-boundary migration as an important element in disaster risk
reduction, climate change adaptation plans, and socioeconomic development.
A lack of both qualitative and quantitative “causality” between climate
events and migration is commonly cited as a fundamental reason for excluding
climate-induced migration from policy frameworks and legal protection.
7
Humanitarian aid organizations and NGOs that provide short-term disaster relief
lack the capacity to adequately document immediate and long-term data on
migrating populations. Moreover, recording accurate data on these populations is
difficult at best. Climate migrants may cross international borders illegally, and
they are generally marginalized and impoverished populations in host countries.
Consequently, migrant populations are at a heightened risk for vulnerability, social
exclusion, criminalization, poverty, and health risks. An increased frequency in
mobility-in-the-context-of-climate-change-adaptation-disaster-risk-reduction-and-sustain
able-development-goals-in-the-hindu-kush-himalayas [https://perma.cc/FG9P-ZT6K].
4. Rep. on the Foreigners (Amendment) Bill, 2000, No. 175, L
AW COMM’N OF INDIA
at 8, http://lawcommissionofindia.nic.in/reports/175thReport.pdf [https://perma.cc/ZQZ4-
PQ9W].
5. Karen Jacobsen & Loren B. Landau, The Dual Imperative in Refugee Research:
Some Methodological and Ethical Considerations in Social Science Research on Forced
Migration, 1–19 (Fletcher Sch. of Law and Dipl. & Univ. of the Witwatersrand,
Johannesburg, Working Paper No. 19, 2003), https://dspace.mit.edu/bitstream/handle/1721.
1/97610/19_dual.pdf?sequence=1 [https://perma.cc/JX6R-L8X6].
6. U.N. High Comm’r for Refugees, UNHCR Global Report 2013: South-East Asia,
at 3 (2013), http://www.unhcr.org/539809fc16.pdf [https://perma.cc/K855-6Y5E].
7. Int’l Org. on Migration, Migration, Environmental and Climate Change:
Assessing the Evidence, at 17 (2009), https://publications.iom.int/system/files/pdf/migra
tion_and_environment.pdf [https://perma.cc/C3F2-ZYZ7].
Hastings Environmental Law Journal, Vol. 24, No. 2, Summer 2018
333
climate events is likely to compound issues in receiving “host” countries that suffer
from already high rates of poverty, vector-borne disease, socioeconomic
stratification, inadequate infrastructure, and low governance. Climate migrants, or
“climate refugees,” are among the most vulnerable populations in these scenarios.
II. International Migration Policies and Legal Framework
Analysis
The international legal status of people forced to leave their homes due to the
direct or indirect impacts of climate change—and are then internally displaced or
have to cross international boundaries—is a matter of great debate. Currently,
competing definitions of this phenomenon preclude designation of climate
migrants as “refugees” in international law, excluding them from the protection of
international human rights regulations under the Geneva Convention of 1951.
8
This lack of agreement on refugee qualification in international government
remains the primary obstacle to collateral policy strategies. The distinction
between forced and voluntary migration is relatively straightforward in the case of
extreme environmental events, such as storm and flood disasters. Yet, there
remains a substantial lack of empirical data that illustrates the complex causal
relationship between climate change and migration. As a result, this distinction is
hard to establish in cases where gradual environmental degradation and climate
related, slow-onset events are assumed to drive people to abandon their homes.
Examination of some of the prevalent definitions proposed by leading experts in
the field is provided below.
The United Nations Environmental Programme sought to define
“environmental refugees” as: “[P]eople 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.”
9
This definition has been
repeatedly rejected, inter alia, by the United Nations High Commissioner on
Refugees and the International Organization for Migration. These organizations
have since adopted the less controversial category of “environmentally displaced
persons,” defined as: “[P]ersons who are displaced within their own country of
habitual residence or who have crossed an international border and for whom
environmental degradation, deterioration or destruction is a major cause of their
displacement, although not necessarily the sole one.”
10
8. U.N. High Comm’r for Refugees, Convention and Protocol Relating to the Status
of Refugees, 189 U.N.T.S. 137 (July 1951), http://www.unhcr.org/en-us/3b66c2aa10
[https://perma.cc/WTZ4-77QJ].
9. W. Franklin & G. Cardy, United Nations Envt Program, Environment and Forced
Migration: A Review, 2, (Jan. 1998) (on file with author).
10. Steffen Bauer, “Climate Refugees” Beyond Copenhagen: Legal Concept,
Political Implications, Normative Considerations, G
ERMAN DEV. INST. at 3, (Mar. 2010),
https://www.brot-fuer-die-welt.de/fileadmin/mediapool/2_Downloads/Fachinformationen/
Analyse/analyse_12_englisch_climate_refugees.pdf [https://perma.cc/7MNK-KQYG].
Hastings Environmental Law Journal, Vol. 24, No. 2, Summer 2018
334
Legal scholars and human rights activists argue against using the term
“refugee” for three reasons: 1) the requirement to establish a robust and exclusive
causal link between specific environmental change and a person’s decision to
migrate in order to qualify as a refugee; 2) the specific guarantees granted to
refugees proper by the Geneva Convention, specifically those relating to the Status
of Refugees of 1951 (and its Protocol of 1967); and 3) the lack of basis in
considering empirical phenomena, such as climate change or environmental
degradation, as agents of persecution.
11
There are a number of legally binding international laws that may be
amended or expanded to encompass climate migrants. One approach is the
International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families, which the UN General Assembly ratified in
1990.
12
While it explicitly addresses labor migration, its legal provision might
apply in a wider context. However, the convention enjoys limited international
support and has hardly been a success story so far. To go into effect, the convention
required ratification by twenty member states, a process that took more than
thirteen years, and today it only has thirty-nine signatories out of fifty-one member
States.
13
Moreover, its regulations are rarely observed.
14
The United Nations developed the “Responsibility to Protect” to prevent
failures of inaction, which it employs as an innovative approach to address an
apparent operational protection gap in international law. It was developed to
reaffirm the UN’s high moral authority for the universal protection of human
rights, in response to the tragedies in the 1990s Rwanda and the Balkans.
15
Ultimately, this principle aspires to make it incumbent on states to take appropriate
protective measures during events that imperil human rights.
16
This stopgap
11. International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families 30 I.L.M. 1517 (Dec. 1990), http://www.ohchr.org/
Documents/ProfessionalInterest/cmw.pdf [https://perma.cc/D2SV-LV98].
12.Id.
13. International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families, Status of Ratification and Signatories, (last visited Apr. 6,
2018), https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-13&chap
ter=4&lang=en [https://perma.cc/3DUK-LPK6].
14. Steffen Bauer, “Climate Refugees” Beyond Copenhagen: Legal Concept,
Political Implications, Normative Considerations, G
ERMAN DEV. INST. at 3, (Mar. 2010),
https://www.brot-fuer-die-welt.de/fileadmin/mediapool/2_Downloads/Fachinformationen/
Analyse/analyse_12_englisch_climate_refugees.pdf [https://perma.cc/7MNK-KQYG].
15. I
NTERNATIONAL COMMISSION ON INTERVENTION AND STATE SOVEREIGNTY, THE
RESPONSIBILITY TO PROTECT (Dec. 2001), http://responsibilitytoprotect.org/ICISS%20
Report.pdf [https://perma.cc/E3W5-RG7U], see also O
UTREACH PROGRAMME ON THE
RWANDA GENOCIDE AND THE UNITED NATIONS, THE RESPONSIBILITY TO PROTECT:
BACKGROUND NOTE (Mar. 2002), http://www.un.org/en/preventgenocide/rwanda/pdf/Bgre
sponsibility.pdf [https://perma.cc/DF7X-STJ8].
16. Steffen Bauer, “Climate Refugees” Beyond Copenhagen: Legal Concept,
Political Implications, Normative Considerations, G
ERMAN DEV. INST. at 3, (Mar. 2010),
https://www.brot-fuer-die-welt.de/fileadmin/mediapool/2_Downloads/Fachinformationen/
Analyse/analyse_12_englisch_climate_refugees.pdf [https://perma.cc/7MNK-KQYG].
Hastings Environmental Law Journal, Vol. 24, No. 2, Summer 2018
335
measure may be utilized as a temporary means of addressing the human rights of
climate migrants.
The United Nations’ Convention to Combat Desertification in Countries
Experiencing Serious Drought and/or Desertification, established particularly to
address climate challenges in Africa, explicitly acknowledges the link between
environmental degradation and migration.
17
Article 17.1(e) specifically requests
governments to account for “the relationship between poverty, migration caused
by environmental factors, and desertification.”
18
It has been proposed that climate
induced migration may be aptly addressed under this convention.
While climate migrants have remained a fringe issue in international climate
negotiations, legal frameworks for ensuring the protection of climate migrants’
human rights are receiving increasing attention. In 2009, the UNHCR published
recommendations to the UNFCCC Conference of Parties suggesting that, “while
there is no mono-causal relationship between climate change and displacement”
States Parties should “acknowledge that there is a clear link between the effects of
climate change and displacement,” and further, that “States Parties should build on
existing international response mechanisms to ensure policy coherence between
mitigation, adaptation, humanitarian responses and development”.
19
Though this
indicated acknowledgement of the issue, it did nothing to address it through legal
means.
More recently, with the United Nations resolution to appoint the
International Organization for Migration (IOM) as an official “related
organization” of the U.N. in 2016,
20
new recommendations for legal frameworks
are emerging. In a recent draft article on the protection of persons in the event of
disasters, published by the U.N., the IOM, along with the Norwegian Refugee
Council, seem to recommend a scatter shot approach to legal reforms; wherein they
reframe current definitions and revise established agreements to more broadly
encompass environmentally displaced migrants as a protected class within existing
17. U.N. Convention to Combat Desertification in those Countries Experiencing
Serious Drought and/or Desertification, Particularly in Africa, Paris, (Oct. 14, 1994), 1954
U.N.T.S. 3 [hereinafter U.N. Convention on Desertification], https://treaties.un.org/
doc/Publication/MTDSG/Volume%20II/Chapter%20XXVII/XXVII-10.en.pdf
[https://perma.cc/JJ66-KSD9].
18. Michelle Leighton, Thomas R. Loster, & Koko Warner, Global Trends: The
Challenges of Climigration, D+C
DEV. & COOPERATION (Aug. 28, 2009),
https://www.dandc.eu/en/article/climate-change-will-trigger-mass-migration
[https://perma.cc/6CSB-6BYD].
19. U.N.
HIGH COMM’R FOR REFUGEES, FORCED DISPLACEMENT IN THE CONTEXT OF
CLIMATE CHANGE: CHALLENGES FOR STATES UNDER INTERNATIONAL LAW, 2, (May 20,
2009), http://www.unhcr.org/en-us/protection/environment/4a1e4d8c2/forced-displace
ment-context-climate-change-challenges-states-under-international.html
[https://perma.cc/DLF4-KSKZ].
20. International Organization for Migration, Press Release, IOM Becomes a Related
Organization to the UN (July 25, 2016), https://www.iom.int/news/iom-becomes-related-
organization-un [https://perma.cc/J5YS-3NVG].
Hastings Environmental Law Journal, Vol. 24, No. 2, Summer 2018
336
legal agreements.
21
Through the lens of disaster risk reduction and the use of
foreign military and civil defense assets in disaster relief, also referred to as the
“Oslo Guidelines,” IOM is redefining the terms of the legal agreements by which
nation states take actionable measures in disaster relief, to more acutely address
climate refugees’ rights to “essential needs.”
22
How these revisions translate in
implementation on the ground is yet to be seen. Moreover, climate migrants still
lack a comprehensive framework for legal protection. And, especially in
protracted resettlement without enforceable rights, climate migrants remain
marginalized and vulnerable.
II. India’s Migration Laws and Policies
Historical Context
India has contended with colonial occupation and empirical influence since
the early 1400s. The Portuguese (1434-1961), Dutch (1605-1825), Danes (1620-
1869), French (1769-1854), and British (1612-1947) all impacted India’s present
day national boundaries, demographics, cultural milieu, and legal systems.
23
Under English occupation, the nation-states of Pakistan, Bangladesh, Bhutan,
Southern Nepal, Myanmar (Burma), and northern territories surrounding Jammu
and Kashmir in the Himalayan Mountain Range were considered part of India. In
its Report on the Proposed Foreigners Amendment Bill of 2000, the Law
Commission recounts the historical relationships between India, Pakistan (while
under formation), and East Pakistan (later to become Bangladesh), beginning with
the British occupation of India.
The British needed cheap labour for their plantations and industrial
establishments not only in India but in other parts of the world under their political
authority. This they ensured through inter-country and intra-country migration of
labour. It is on record that since 1920, they moved people to serve as labourers
from the eastern region of Bengal to Assam for developing their tea industries.
Later, the political divide of the people on the basis of religion which ultimately
led to the Partition of the country resulted in the largest ever migratory movement
in the world’s history. India had to absorb the bulk of the migrants.
24
In the months preceding Indian Independence, the British began
implementing the “Mountbatten Plan” of Partition to divide India along religious
lines. Pakistan was formed as a Muslim state and recognized as independent on
August 14, 1947; at a time when Bangladesh was considered part of East Pakistan.
India was recognized as independent on August 15, 1947, subsequently displacing
21. International Law Commission, Draft articles on the protection of persons in the
event of disasters, art. 2 (2016), http://legal.un.org/docs/?path=../ilc/texts/instruments/
english/commentaries/6_3_2016.pdf&lang=EF [https://perma.cc/TPX3-YFUF].
22.Id.
23. B
ARBARA D. METCALF & THOMAS R. METCALF, A CONCISE HISTORY OF MODERN
INDIA 221-22 (Cambridge Univ. Press ed., 2nd ed. 2006).
24. Rep. on the Proposed Foreigners (Amendment) Bill, 2000, supra note 4, at 3.
Hastings Environmental Law Journal, Vol. 24, No. 2, Summer 2018
337
nearly 12.5 million people and leading to an estimated death toll “varying from
several hundred thousand to a million.”
25
The violent nature of the partition created an atmosphere of mutual hostility
and suspicion between India and neighboring Pakistan and Bangladesh that afflicts
their relationships to this day.
An estimated 25 million Hindus, Muslims and Sikhs (1947–present) crossed
the newly drawn borders to reach their new homelands. These estimates are based
on comparisons of censuses from 1941 and 1951 with adjustments for normal
population growth in the areas of migration. In northern India—undivided Punjab
and North Western Frontier Province (NWFP)—nearly 12 million were forced to
move from as early as March 1947 following the Rawalpindi violence.
26
,
27
The historical context of forced migration and colonial division of nation-
states significantly impacts present day migrants’ reception, integration, and social
inclusion or exclusion in receiving communities. While Nepalese and Tibetan
Chinese are generally regarded as benevolent neighbors, Pakistani and
Bangladeshi immigrants are met with ardent discrimination in receiving
communities, both socially and via the policies governing immigration.
The Ministry of Home Land Affairs and the Law Commission of the
Ministry of Law and Justice for the Central Government of India recognized these
historical relationships and the long-term trends of migration caused by political
events within and between neighboring countries in the years following
Independence.
Partition was not the only event that resulted in large scale migration of
populations. Even after the formation of Bangladesh in 1971, the migration of
people from the new State continued to the bordering states of India. Infiltration
also took place in 1948 from across the border into Jammu and Kashmir following
the armed attack by Pakistan in the guise of “raiders.” The developments in Tibet;
insurgency in Sri Lanka resulting in migration of large numbers of Sri Lankan
Tamils to Tamil Nadu; the coming of many Afghans to India after takeover of
Afghanistan by Taliban, and recently the infiltration into Kargil . . . in varying
degrees, have been responsible for entry into India of foreigners as refugees and
illegal migrants.
28
India’s International Migration Profile
Policy and Law Review
The current law governing migration, citizenship, national identity
determination, deportation, and internment of foreigners in India is the Foreigners
25. METCALF & METCALF, supra note 23.
26. R
AVINDER KAUR, SINCE 1947: PARTITION NARRATIVES AMONG PUNJABI
MIGRANTS OF DELHI (Oxford Univ. Press. ed., 2007).
27. Census of India, 1941, CENSUS COMMISSIONER, DELHI, MANAGER GOVT. OF
INDIA PRESS SIMLA.
28. Rep. on the Foreigners (Amendment) Bill, 2000, supra note 4, at 4.
Hastings Environmental Law Journal, Vol. 24, No. 2, Summer 2018
338
Amendment Bill of 2000. This law was preceded by the Passport Act of 1920, the
Registration of Foreigners Act of 1939, the Foreigners Act of 1946, the Immigrants
(expulsion from Assam) Act of 1950, and the Illegal Migrants (Determination by
Tribunals) Act of 1983—all enacted specifically to control the unabated influx of
illegal migrants to the North-Eastern region.
29
The current law, proposed in 1998
and passed by the Sixteenth Law Commission in 2000, was established under the
Law Commission of India, Ministry of Law and Justice. Prior to the law’s passage,
the Indian Central Government’s Committee on Home Affairs “felt that the
Government should undertake an in-depth study regarding the efficacy of the
proposed amendments in checking infiltration of foreigners from across the
borders.”
30
The report revealed the most accurate migration statistics available
from 2000 to present on migrant populations; reflected the cultural perception of
migrants from various neighboring countries (specifically Pakistan and
Bangladesh); and codified into law the policies, practices and procedures now in-
force regarding foreign immigration, detainment, internment, and deportation.
The Central Government of India has attempted to curb illegal immigration
(primarily from Bangladesh) through laws such as the Assam Accord, which
intended to drive Bangladeshis out of the border-states of Assam, Nagaland,
Mizoram, Tripura, Meghalaya, and West Bengal. The current law, the Foreigners
Amendment Bill, recommended the use of “border fencing, modernized electronic
surveillance systems as well as an effective legislation to deal with the menace.”
31
However, these administrative measures were found to be ineffective and cost
prohibitive. The Central Government has provided millions of rupees to the state
governments (specifically Assam) to support the identification and deportation of
Bangladeshis and have taken measures to strengthen Border Security Force
through the construction of border roads, fencing and mechanized riverine
patrolling. However, migration levels remain unchanged and deportation efforts
are largely unsuccessful.
32
Statistical Information on Migration
In the Report on the Proposed Foreigners Amendment Bill of 2000, the Law
Commission identifies the challenges facing the Central Government of India in
managing or lowering incidents of in-migration to India from neighboring nation-
states (specifically Bangladesh).
33
The Report cites the scale, regional distribution,
identity, causes, border corruption and economic inefficiency of current migration
29.Id. at 20.
30.Id. at 1.
31.Id. at 8.
32.Id. at 4.
33. Rep. on the Foreigners (Amendment) Bill, 2000, No. 175, L
AW COMM’N OF INDIA
at 8, http://lawcommissionofindia.nic.in/reports/175thReport.pdf [https://perma.cc/ZQZ4-
PQ9W].
Hastings Environmental Law Journal, Vol. 24, No. 2, Summer 2018
339
management in several sections.
34
To illustrate the Central Government’s
statistical analysis of migration, an excerpt from this report is included herein:
[3.2] Since the liberation of erstwhile East Pakistan, the influx of migrants
from Bangladesh has remained unabated and has acquired frightening proportions.
There is no realistic estimate of these migrants in India. In fact, no census has been
carried out to determine their number. According to the Ministry of Home Affairs,
the total number of Bangladeshis illegally residing in India is estimated at 15 to 18
million and every year at least 3.5 lac (300,500) or more people are infiltrating into
the country.
35
III. India’s Climate Change Risk Exposure and Internal
Migration Trends
In 2007, South Asia experienced a series of floods in India, Nepal, Bhutan,
Pakistan and Bangladesh. Several news agencies, citing the Indian and
Bangladeshi governments, estimated that the floods displaced more than 14 million
people.
36
By August 3rd, approximately 20 million were displaced, and by August
10th, some 30 million people in India, Bangladesh and Nepal were affected by the
flooding.
37
As climatic stresses force resettlement and migration within India,
neighboring countries that suffer similar weather events but with less
infrastructure, governance and adaptation, are showing trends of migration similar
to India. Moreover, extreme flooding and increasingly frequent climatic events in
this region further impede recovery efforts and the rebuilding of critical
infrastructure necessary for economic stability and human health. In 2010,
devastating floods caused the largest displacement in Pakistan’s history, with as
many as 11 million people forced to relocate.
38
In 2012, it was estimated that at
least 6 million people were displaced by the effects of climate hazards in
Bangladesh.
39
In 2017, United Nations humanitarian agencies were working with
the Nepalese government and partners to bring in clean water, food, shelter and
medical aid for some of the 41 million people affected by flooding and landslides
34.Id.
35.Id. at 5–6.
36. Hong Kong Red Cross, South Asia Flood 2007: Work Report, R
ELIEFWEB (Oct.
20, 2008), https://reliefweb.int/report/bangladesh/south-asia-flood-2007-work-report
[https://perma.cc/44RX-5JR6].
37. United Nations Children’s Fund [UNICEF], Millions of People Across South
Asia Affected by Monsoonal Flooding (Aug. 3, 2007), http://www.unicef.org/media/
media_40495.html [https://perma.cc/9JW3-KWH9].
38. Norwegian Refugee Counsel, Briefing paper on flood-displaced women in Sindh
Province, Pakistan, R
ELIEFWEB (June 2011), 3, https://reliefweb.int/sites/reliefweb.int/
files/resources/F_R_88.pdf [https://perma.cc/J49S-3YDY].
39. UN Framework Convention on Climate Change, Displacement Solutions,
Climate Displacement in Bangladesh The Need for Urgent Housing, Land and Property
(HLP) Rights Solutions (May 2012), https://unfccc.int/files/adaptation/groups_committees/
loss_and_damage_executive_committee/application/pdf/ds_bangladesh_report.pdf
[https://perma.cc/2N2L-GZKY].
Hastings Environmental Law Journal, Vol. 24, No. 2, Summer 2018
340
in South Asia.
40
These figures underscore the need for a legal framework for
persons displaced by climate disasters. India continues to grant asylum and
provide direct assistance to some 200,000 refugees from neighboring countries. In
the absence of a national legal framework for asylum, UNHCR undertakes refugee
status determination and assists nearly 22,000 urban refugees and asylum-
seekers.
41
This is clearly an inadequate response given the magnitude of persons
displaced by frequent climate events. Further, little is known about the longer-
term capacity of receiving countries to accommodate larger numbers of
(environmentally forced or motivated) migrants.
42
Over the next forty years, India will experience one of the most dramatic
settlement transitions in history as its urban population grows from about 300
million to more than 700 million.
43
By 2025, an estimated seventy cities in India
are expected to reach populations exceeding one million.
44
Three mega-urban
regions, Mumbai (50 million), the national capital region of Delhi (more than 30
million), and Kolkata (20 million) will be among the largest concentrated urban
areas in the world.
45
By mid-century, India could have both the largest urban and
rural population of all time.
46
This will have a substantial impact on global climate
vulnerability and the potential for mitigation and adaptation.
47
Although India’s
agricultural sector contributes only eighteen percent to the country’s GDP, it
provides livelihoods to almost sixty percent of the population, and the biomass and
ecosystem services that enable the “metabolism” of most Indian cities to
function.
48
The relative importance of environmental factors (and impacts on the
agricultural sector) in livelihoods helps determine how important the environment
40. UN agencies aid millions affected by flooding, landslides in South Asia, UN
NEWS (Aug. 24, 2017), https://news.un.org/en/story/2017/08/563762-un-agencies-aid-
millions-affected-flooding-landslides-south-asia [https://perma.cc/J75J-MS7B].
41.Id.
42. Koko Warner, Assessing Institutional and Governance Needs Related to
Environmental Change and Human Migration, T
HE GERMAN MARSHALL FUND OF THE
UNITED STATES at 4, 8 (June 2010), http://archive.unu.edu/africa/activities/files/Warner_
K_2010_Assessing_Institutional_and_Governance_Needs_Related_to_Environmental_Ch
ange.pdf [https://perma.cc/9T6Y-U269].
43. Aromar Revi, Long-range Macro-dynamics of Indian Urbanization in a
Globalizing World, Proceedings of the Conference on Indian and China in a Global
Perspective, New School, New York (April 2006).
44. B
ARRY B. HUGHES & EVAN E. HILLEBRAND, EXPLORING AND SHAPING
INTERNATIONAL FUTURES 209 (Taylor & Francis, 2006).
45. T
IM DYSON & PRAVIN VISARIA, Migration and Urbanization: Retrospect &
Prospect, in T
WENTY FIRST CENTURY INDIA: POPULATION, ECONOMY, HUMAN
DEVELOPMENT AND THE ENVIRONMENT 108–57 (Oxford U. Press, 1st ed. 2004).
46. Aromar Revi, Climate Change Risk: adaptation and mitigation agenda for
Indian Cities, 20(1) SAGE
PUBLICATIONS, 207–229 (April 2008), http://journals.sagepub
.com/doi/pdf/10.1177/0956247808089157 [https://perma.cc/263F-APGF].
47.Id.
48.Id.
Hastings Environmental Law Journal, Vol. 24, No. 2, Summer 2018
341
is when migration decisions are made.
49
Increased climate-related stress on the
agricultural sector due to both drought and flooding may prompt increased rural-
urban migration while also contributing to food and water scarcity in urban centers.
India is one of the most vulnerable and risk-prone countries in the world.
50
Climate change is expected to increase the frequency and intensity of current
hazards and the probability of extreme weather events, as well as spur the
emergence of new hazards (e.g., sea-level rise), and create new vulnerabilities with
differential spatial and socioeconomic impacts.
51
This will further degrade the
resilience of poor and vulnerable communities that make up about one quarter to
one half of the population of most Indian cities.
52
Severe stresses induced in urban
areas due to a mix of water scarcity, the breakdown of environmental services,
flooding, and consequent water-borne diseases, and malaria-type epidemics
combined with a rapid rise in health expenditure could maintain the low current
level of rural-urban migration. The potential for climate change (along with other
driving factors) to induce internal migration and urbanization within India is high.
There is little comprehensive research on the associative relationships between
slow-onset climactic change, agricultural degradation, and rural-urban migration
in India. However, data on the declining systemic health of the agricultural sector
and increased water scarcity (inevitably exacerbated by declining snow melt from
the Himalayas) in both rural and urban areas of India suggests an overall increase
in the vulnerability to human systems. The likelihood of increased floods, food
shortages, water scarcity and increased vector-borne diseases in low elevation
urban centers—will adversely affect both rural and urban “metabolism,” and may
even prompt urban-rural migration within India. However, populations in
neighboring countries that suffer from less structural resilience may migrate to
India in search of more advanced infrastructure and support.
A multitude of socioeconomic and environmental indicators suggest
significant correlations between climate change and both rural-urban migration and
cross-boundary migration to urban coastal zones in India. High-intensity climate
disasters, and long-term slow onset climate degradation in India—and in
neighboring countries such as Pakistan, Bangladesh, Sri Lanka, and the
Maldives—are likely to increase migration to urban cities in low-elevation coastal
zones.
53
Migrant populations and internally displaced people will face increased
vulnerability to the socioeconomic and health impacts of climate-induced
migration, and suffer from reduced access to basic needs and services.
International governments and India’s domestic laws neglect to account for the role
climate change plays in migration to urban centers, and lack the comprehensive
49. Warner, supra note 35, at 4, 8.
50. Revi, supra note 46, at 207.
51.Id.
52. David Sattherwite et al., Adapting to Climate Change in Urban Areas: The
possibilities and constraints in low and middle-income nations, I
NTERNATIONAL INSTITUTE
FOR
ENVIRONMENT AND DEVELOPMENT at 18 (2007), http://pubs.iied.org/pdfs/10549
IIED.pdf [https://perma.cc/NHX5-RFEK].
53.Id.
Hastings Environmental Law Journal, Vol. 24, No. 2, Summer 2018
342
frameworks needed for climate change adaptation measures in high-density urban
coastal zones.
IV. Climate Change, Vulnerable Populations and International
Conflict
While much of the research conducted in the fields of human migration,
environmental climate change, development, economics, and human health has
been done through a narrow disciplinary lens, a common vulnerability unites the
impoverished and displaced in countries of South Asia. This excerpt from Revi’s
Climate Change Risk aptly summarizes the commonality:
Having limited skills, education, capital and access to the social
networks that underpin much of economic and social mobility, in urban
India, more of the landless and small and marginal farmers are forced
to migrate, often forming the most vulnerable groups in cities. They
often live in illegal, unserviced settlements exposed to a wide range of
environmental risks from flooding to fire, and continual cycles of
demotion and eviction by civil authorities. They are, therefore, dual
victims of existing natural hazards and emerging climate change—
displaced from their original places of residence and occupations, and
challenged by urban risks in their new urban places of residence.
54
Trans-boundary climate migrants share a similar fate of dual exposure and
continually diminished resilience.
Changes in river hydrology, snow melt, and the subsequent decline of the
agricultural sector (upon which the majority of subsistence farmers rely) will affect
multiple countries whose urban and rural ecology is dependent on shared water
resources. The most serious regional impact of climate change will be the changes
in river hydrology in the indo-Gangetic plain and the Brahmaputra valley, due to
glacial melt and regression of the Himalayan glaciers.
55
Ongoing trans-boundary
conflicts between India and Pakistan, and Nepal, India and Bangladesh, could also
be compounded by a possible China-India conflict over the use of Yarlung Tsang-
po/Brahmaputra water.
56
Trans-boundary conflicts over scarce water resources are
also likely to sharpen cultural divisions. A case study by the Inventory of Conflict
and Environment entitled “Climate Change and Conflict in Migration from
Bangladesh to Assam (India)” articulates the historical trend of climate-induced
migration and subsequent ethnic violence:
Violent conflict in Assam between indigenous groups and Bangladeshi
migrants began in 1979 when the presence of 70,000 immigrants was discovered
in one constituency. When the government did nothing to mitigate this influx of
outsiders, the groups polarized and organized. The result was at least 4,700 deaths
54. Revi, supra note 46, at 214.
55. Id.
56.Id.
Hastings Environmental Law Journal, Vol. 24, No. 2, Summer 2018
343
that year. From that point on, an unstable government has endured constant civil
disobedience campaigns and excessive ethnic violence. Support for radicalism
increases with added strain on jobs and resources. Government officials in India
are wary of unrest and are actively trying to stem the influx of migrants and
negotiate an end to overt violence. Bangladeshi environmental refugees are
searching for sustainable livelihoods in Assam, but the government fights
migration, lacking effective mechanisms for integration with local communities.
57
The next most important climate change risk is increased riverine and inland
flooding, particularly in northern and eastern India bordering Nepal and
Bangladesh.
58
There are tens of millions of people that are currently affected by
floods for three to six months out of the year in eastern India.
59
Climate change is
expected to increase the severity of flooding in many Indian river basins, especially
those in the Godavari and Mahanadi along the eastern coast.
60
Floods are expected
to increase in northwestern India, adjoining Pakistan, and in most coastal plains, in
spite of existing upstream dams and “multi-purpose” projects.
61
From climate
science forecasting in the neighboring regions of Pakistan, Bangladesh, Nepal,
Myanmar, Sri Lanka, and the Maldives, and the likelihood of increased climate
induced out-migration, historical precedents imply that cultural conflict and ethnic
violence between Indian nationals and trans-boundary migrants would likely
follow suit.
Conclusion
Policy, law and governance play a crucial role in the social and economic
outcomes for both migrant and receiving communities. The cost of unplanned,
unregulated migration to India from countries contending with frequent climate
disaster is two-fold. There is the financial cost as millions of Indian crore are being
spent ineffectively to abate in-migration from Bangladesh and Pakistan, as well as
the social cost from the lack of integration and increased likelihood of cultural
tension and conflict. Development, urban infrastructure and population health are
also hindered by the lack of intergovernmental coordination in regard to migration.
This creates added environmental stresses on urban centers (i.e., sanitation,
pollution and access to potable water) and compromises population health as a
whole.
Increased governance and preemptive policies that address migration across
borders strengthens formal trade relations, increases resilience among migrant
57. Casey Gugoff, Climate Change and Conflict in Migration from Bangladesh to
Assam (India), T
HE INVENTORY OF CONFLICT AND ENVIRONMENT, 9 (Dec. 2011),
http://mandalaprojects.com/ice/ice-cases/assam.htm [https://perma.cc/UTL2-WJ4J].
58. Revi, supra note 46, at 215.
59. Dinesh Kumar Mishra, Flood Protection That Never Was: Case of Mahananda
Basin of North Bihar, E
CONOMIC & POLITICAL WEEKLY (July 17–23, 1999),
http://www.jstor.org/stable/4408210 [https://perma.cc/5YHF-776D].
60.Id.
61. Revi, supra note 46, at 215.
Hastings Environmental Law Journal, Vol. 24, No. 2, Summer 2018
344
communities in regions of resettlement, reduces the likelihood of cultural conflict,
and expands access to basic resources that increase over-all health outcomes.
Increased coordination between the Indian Central Government, Bangladeshi, and
Pakistani governments also has ancillary social and financial benefits for India and
neighboring countries, and is a preferred policy strategy for addressing migration
as an adaptation strategy to environmental change.
State-level interventions that can reduce the impact of climate events and
migration could include planned relocation, legal protection for displaced people,
and structural measures in development to reduce the impacts of environmental
change (such as flood defenses). These policy interventions increase resilience in
migrant and receiving communities, reduce the likelihood of endemic disease and
vulnerability, and increase mitigation bio-regionally and in urban centers.
Development, environment and cross-boundary migration policies—previously
created in mutual exclusion—can be increasingly effective if objectives for climate
adaptation were considered as a shared objective in future policy.
Climate change and climate migration is one of the most significant threats
to India’s socioeconomic stability and stability in the region. India is the main
recipient of population flow in South Asia, including both climate refugees and
economic migrants, and new bilateral policies and de-colonized legal frameworks
must take into consideration the historical context of national division to
effectively create policy solutions in migration. While India has preferred to tackle
such issues internally, it may consider involving international actors in arriving at
meaningful solutions because the reach and complexity of the international
population movements are beyond the capacities of a single country.
62
Organizations that provide international aid, such as the United Nations High
Commission on Refugees, and organizations like the International Organization on
Migration that deals with complex multi-lateral migration policy issues and on-
the-ground implementation, could play a significant role in assisting India and
neighboring countries to reach accord on both internal policies and bio-regional
cooperation.
62. Sanjeev Tripathi, Illegal Immigration From Bangladesh to India: Toward a
Comprehensive Solution, C
ARNEGIE INDIA (June 29, 2016), http://carnegieindia.org/
2016/06/29/illegal-immigration-from-bangladesh-to-india-toward-comprehensive-
solution-pub-63931 [https://perma.cc/2UCD-7UYL].
