Beyond ‘Refugee’ Status: Reimagining the Application of Non-Refoulement for Climate-Displaced Persons

Escalating climate changes have led to the emergence of a category of ‘forced migration’ which still persists as an unresolved issue within the framework of international law. Persons being displaced due to severe climatic conditions continue to remain external to the purview of ‘refugees’ as embodied under the Convention ‘Relating to the Status of Refugees, 1951.’ This existing structure limits protection of ‘climate-displaced’ persons owing to an inadequate definition of ‘persecution’ provisioned under the Convention. Nonetheless, there is a crucial need for developing a mechanism that would ensure protective safeguards to climate-displaced persons. Hence, this paper contends that such development requires a re-evaluation of the principle of ‘non-refoulement’ in order to bridge the protection gap. The essence of non-refoulement warrants the protection of life and freedom by prohibiting contracting parties from expelling or returning persons who are given the status of ‘refugees’ by virtue of the Convention. Going beyond the conventional paradigms, this principle must be moulded to incorporate the climate displaced persons. Lack of recognition of climate-displaced persons as refugees under the Convention must not interfere with the obligation of states to protect climate-displaced persons. This paper advocates for a conceptual transition in the application of non-refoulement where the state responsibility remains grounded in ‘risk or harm based’ protection rather than ‘persecution based’ protection. Envisioning non-refoulement beyond the mere limits of persecution will aid in addressing the lacuna existing in the international law framework. Extending this ambit will offer an ‘integrated approach of refugee law and human rights law’ whereby the ‘principle of non-refoulement’ will guarantee the protection of rights of persons who are affected by climate-induced displacement.