CLIMATE “REFUGEES” UNDER INTERNATIONAL LAW

(Project towards the fulfilment of the CA1 assessment in the subject of Public International
Law, Semester V)

SUBMITTED TO:

PROF. VARSHA SINGH

ASSISTANT PROFESSOR

FACULTY OF LAW

NATIONAL LAW UNIVERSITY, JODHPUR

SUBMITTED BY:

VIDHI KANODIA

NLU/JODH/UG/2020/1958

SEMESTER V

B.A. LL.B. (HONS.)

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION

(JULY, 2022 – JANUARY, 2023)

 ABSTRACT

Climate change is no longer an alien word. The catastrophes that mankind is seeing today
is deplorable and heart-wrenching. Scientific certainty and consensus has accepted that
anthropogenic activities dictated by the pursuit of development have led to the present
looming crisis of climate change. Sea level rise, coastal erosion, decrease in agricultural
production, accessibility to clean water and impact on health, are some of the consequences
of climate change well documented and accepted. At the same time the realisation is gaining
ground that climate change has a social, economic and differential impact. Climate change
will affect all countries, in all parts of the globe. But its impacts will be distributed
differently among regions, generations, age classes, income groups, occupations and
genders. The poor, the majority of whom are living in developing countries, will be
disproportionately affected. However, the scope of the definition of ‘refugee’ in the Geneva
Convention (1951) does not allow migrants for climatic reasons the refugee status under
international law. According to the UN High Commissioner for Refugees (UNHCR),
refugee law should be interpreted so as to cover migrants for environmental reasons, as
long as the Geneva Convention clearly sets the conditions of individual persecution.
Including people migrating because of environmental degradation in the scope of the
Geneva Convention of 1951 would affect the situation of currently covered refugees.
However, the most vulnerable can be induced to migrate and often relocate, displacement
becoming a reaction of last resort to deal with climate change. This assignment focuses on
the impact of climate change on displacement and subsequent refugee problem. The author
tries to analyse the extent to which the climate displacement find itself part of current
international framework including climate change regime and refugee regime and suggest a
human rights approach to climate induced displacement.

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 ENVIRONMENTAL REFUGEES IN A GLOBALLY WARMED WORLD

“The gravest effects of climate change may be those on human migration as millions are
uprooted by shoreline erosion, coastal flooding and agricultural disruption.”

-Intergovernmental Panel on Climate Change

The environment of the Earth is being negatively impacted by anthropogenic climate

change, which is also changing how humans live. Politicians and decision-makers are
paying more attention to those who have been or will be relocated due to the effects of
climate change. This issue serves as a potent illustration of the human face of climate
change in the context of global policy. 1 However, because environmentally displaced
persons (EDPs) are not protected by the 1951 Refugee Convention and are not covered by
the UNHCR’s charter, the UNHCR has raised concern. EDPs are frequently referred to as
“climate refugees” by the media and politicians, although due to their legal ambiguity,
neither scholars nor international organisations agree that EDPs are necessarily refugees.
Due to the lack of agreement, there is a vacuum in legal protection.

There is too frequently an unthinking acceptance of a direct causative link between

environmental degradation and human displacement, stated geography professor Steve
Lonergan in 1998. The underlying assumption in these articles is that environmental
degradation- a potential driver of human displacement- can be distinguished from other
social, economic, and political factors. Recognising that environmental deterioration is
socially and spatially constructed is necessary in order to comprehend the “role” that the
environment plays in influencing population movement. This structural understanding of the
environment must be done within the larger political and cultural context of a region or
nation.2 However, we need to note that people are not displaced by climate change alone;
rather, it exacerbates social vulnerability, which also leads to relocation. Although treating
environmental displacement as a refugee crisis heightens the severity of the situation, this
paradigm will fall short of solving the issue.

1
Koko Warner, Climate Change Induced Displacement: Adaptation Policy in the Context of the UNFCCC
Climate.
2
Steve Lonergan, The role of environmental degradation in population displacement, 4 ENVIR. CHANGE AND
SECURITY PROJECT REPORT, (1998).

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 CATEGORIES OF CLIMATE CHANGE INDUCED DISPLACEMENT

Environmental displacement with both a quick and a delayed beginning is influenced by

climate change. The way people interact with water is changed by climate consequences like
warming oceans, rising sea levels, and rising global temperatures. Living near bodies of
water and depending on them and groundwater for livelihoods are only a few of the aspects
of life that are threatened by climate change. Rapid onset and slow onset migration are
influenced by the dangers to human interactions with water.

Rapid onset environmental displacement is the result of people being uprooted because of
natural disasters like landslides, storms, and cyclones that make certain areas uninhabitable.
Because of how warming ocean temperatures affect storms and ocean currents, it is linked to
climate change. The Internal Displacement Monitoring Centre (IDMC) estimates that just in
2011, “14.9 million individuals were displaced by abrupt onset natural catastrophes.”3
According to an analysis of data from 148 states by IDMC, 10.8 million people were
internally displaced in 2018 owing to violent conflicts, compared to 17.2 million as a result
of climate change. Following this, in the first part of 2019 4, almost seven million individuals
abandoned their houses for climatic reasons. However, while the IDMC showed that
approximately 265 million people already had to leave their country of origin due to
climate-related disasters in 2008-2018.

Due to anthropogenic climate change, droughts are anticipated to increase in frequency and
severity5. By 2020, between 75 and 250 million people in Africa would be impacted by
climate change6, which will also reduce the amount of freshwater available. Slow-onset
drought-related displacement is frequently transient, as is the case in Somalia frequently.

RELEVANCE AND ROLE OF INTERNATIONAL LAW

The 1951 Convention’s stringent definition of a refugee does not apply to people who leave
places because of the environment. Therefore, the phrase “climate refugee” as it is often
used is inaccurate. Although the convention has a specific description of what a “refugee” is,
3
Vikram Kolmannskog, Climate Change, Environmental Displacement and International Law, J. OF INT. DEV.
24, (2012).
4
Internal Displacement from January to June 2019, 7.
5
Robert A. McLeman, Climate and Human Migration: Past Experiences, Future Challenges, CAMBRIDGE
UNIVERSITY PRESS, 141, (2014).
6
Cecilia Tacoli, Crisis or Adaptation? Migration and Climate Change in a Context of High Mobility, UNITED
NATIONS POPULATION FUND, 108, (2009).

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McAdam points out that this does not mean that displaced people who do not fulfil the
definition are ineligible for refugee status or that they will definitely be denied it 7. A band
aid solution put in place to deal with the WWII refugees was the 1951 Convention Relating
to the Status of Refugees. The United Nations wanted it to be a short-term solution to a
problem. Today, however, the massive global refugee population that is fleeing persecution
is covered by the 1951 Convention and the 1967 Protocol. First, because the 1951
Convention was created to address a particular issue, and second, because climate change
was not yet recognised when the 1951 Convention and 1967 Protocol were written, the 1951
Convention cannot alone address the predicament of EDPs. EDPs ought to be subject to the
protection and non-refoulment principle, which prohibits requiring refugees to return to their
home countries. Their displacement was caused for causes other than those of Convention
refugees, but their suffering is comparable.

EXPANDING THE 1951 REFUGEE CONVENTION

One could argue that the Refugee Convention should be read to encompass EDPs. “Reasons
of race, religion, nationality, or membership of a particular social group or political
opinion” are used to describe the persecution of refugees. Accordingly, depending on their
demography and affiliation with particular social groups, EDPs experience climate disasters
in different ways. Politicians from environmentally fragile nations like Bangladesh and the
Maldives have even demanded that the Convention be changed to include protections for
EDPs8. Even though EDPs do not strictly fit the concept of a refugee, it is too early to
conclude that they will never be included in the definition 9. The displacement is not random,
which is the cause of this. There is some debate as to whether marginalised populations that
are uprooted by the environment qualify as a “particular social group.” Marginalised groups,
such as members of oppressed castes and ethnic minorities, are more vulnerable to climate
disasters before they happen and suffer from an unfair allocation of aid and relief after the
disaster.

If aid is provided unfairly or unequitably, a lack of protective help in the wake of disasters is
equivalent to persecution. Particular social groups might not be able to access state
protection in the form of disaster relief in situations of politicised disaster aid, as was the
7
McAdam, Climate Change, Forced Migration, and International Law, 97.
8
Jane McAdam, Swimming against the tide: why a climate change displacement treaty is not the answer , INT.
J. OF REFUGEE LAW 23, (2011).
9
Supra note at 3.

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case in the wake of Hurricane Katrina. Persecutory acts are covered by the Convention even
if their origins are not state actors or even sponsored by them. Persecution, according to
Deborah Anker, professor of law and director of the Harvard Law School Immigration and
Refugee Clinical Program, encompasses circumstances in which the government “simply
cannot protect its citizens.”10 The Anker surrogacy concept can be used to examine how
international refugee law affects EDPs. Discriminatory climate adaption policies and
inadequate disaster aid can be seen as forms of persecution because they reflect the state’s
inability to fulfil one of its most important obligations to its citizens: protecting human life.

Trans-border migration separates refugees from internally displaced people (IDPs).

Refugees are required by law to be outside of their nation of origin. They are regarded as
IDPs if they are on an internal flight. Biermann and Boas dismiss the necessity of
transboundary movement for refugees because both internal and external flight will be
exacerbated by climate change.11 They define climate refugees as “people who have to leave
their habitats, immediately or in the near future, because of sudden or gradual alterations
in their natural environment related to at least one of three impacts of climate change: sea
level rise, extreme weather events, and drought and water scarcity.”12 Biermann and Boas
suggest creating a new system of regulation for climate refugees that places a focus on
resettlement, collective rights, international assistance, and burden sharing rather than
enlarging the Convention. A protocol to the United Nations Framework Convention on
Climate Change, according to their suggestion, might be used to implement this system.13

INTERNAL DISPLACEMENT PROTOCOLS AND REGIONAL REGIMES

Another reason that the Refugee Convention is not the most appropriate legal mechanism
for addressing EDPs is that they are predominantly internally displaced, meaning they are
displaced within their countries of origin. The 1998 Guiding Principles on Internal
Displacement, which incorporate aspects of international refugee law, provide a useful
framework for addressing environmental displacement. The Guiding Principles contain a
broad definition of IDPs “which includes those fleeing man-made or natural disasters.” The

10
Deborah Anker, Refugee Status and Violence Against Women in the ‘Domestic’ Sphere: the Non-State Actor
Question., GEORGETOWN IMMIGRATION LAW J. 394, (2001).
11
Biermann and Boas, Preparing for a Warmer World Towards Global Governance System to Protect Climate
Refugees, 66-67.
12
Id.
13
United Nations Framework Convention on Climate Change, PARIS AGREEMENT ( FCCC/CP/2015/10/Add.1)
(2015), http://unfccc.int/files/meetings/paris_nov_2015/application/pdf/paris_agreement_english_.pdf.

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UN Special Rapporteur on the Human Rights of Internally Displaced Persons has further
clarified that the definition covers EDPs. However, because they are non-binding, there is
also very limited enforceability and accountability with soft law mechanisms.

When examining the viability of regional cooperation in the form of environmental

displacement treaties to address cross-border displacement brought on by environmental
degradation, Subramanian and Urpelainen employ a game theory approach.14 When both
sides are somewhat vulnerable, countries are more likely to agree to a cross-border
displacement treaty. They stand to lose or gain from a treaty since they share similar assets
and securities. Cross-border displacement is possible in low-lying island countries and
border regions even if environmental displacement mostly occurs within 15. In nations like
Somalia, where slow-onset environmental calamities are displacing people over national
borders, this phenomenon is already present.

The Kampala Convention is used by Subramanian and Urpelainen as an illustration of a

convention that supports their paradigm. The African Union passed the Kampala
Convention, a treaty that addresses many different types of cases of displacement, including
those “due to natural or human-made calamities, including climate change.”16 The treaty
outlines steps to stop internal displacement and lessen its causes. In situations where a state
is unable to offer adequate protection, it also calls for support from humanitarian
organisations and other pertinent parties. Other state parties are considered to be “other
relevant players,” according to Subramanian and Urpelainen. While their model of mutual
vulnerability can be useful in addressing EDP treaties at a regional level, it does not account
for the fact that there is significant asymmetry in climate vulnerability among countries of
the Global North and South. It also fails to consider regional political conflict in parts of the
Global South most vulnerable to climate change. In cases where states do not have the
capacity to accept EDPs from neighbouring states, or are equally affected by climate
change, regional treaties may not help the countries that are most vulnerable to climate
change.

VULNERABILITY INDICES

14
Subramanian and Urpelainen, Addressing cross-border environmental displacement: when can international
treaties help?.
15
Supra note at 11.
16
Supra note at 14, 37.

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Due to the interaction of ecological and social vulnerability, EDPs are displaced. “The
degree to which a system is sensitive to, and unable to cope with, detrimental effects of
climate change, including climate variability and extremes,” is how the Intergovernmental
Panel on Climate Change (IPCC) defines vulnerability. 17 The definition used by the United
Nations Office for Disaster Risk Reduction is based on human beings. “The traits and
circumstances of a community, system, or asset that render it susceptible to the detrimental
impacts of a hazard” is how they define vulnerability. Environmental displacement is
exacerbated by socioeconomic disparities, which also increase ecological vulnerability.
When it affects vulnerable groups, an extreme environmental event turns into a disaster.

A vulnerability index is a tool for calculating how vulnerable individuals, communities,

nations, and other organisational units are. The Hazards and Vulnerability Institute at the
University of South Carolina created the Social Vulnerability Index (SoVI).18 The SoVI does
not include ecological variables such as temperatures, land level above sea level, and level at
risk for hydro-meteorological events. This allows for the comparison of the SoVI with
individual ecological variables. Geographic Information System (GIS) mapping of
vulnerability indexes provide a useful tool for analysing the overlap of ecological and social
vulnerability. GIS visually presents data in maps. The Wheeler Vulnerability Index (WVI),
an index of the vulnerability of countries as a whole, to quantify vulnerability outside of the
U.S. The WVI, created by environmental economist David Wheeler, considers the three
main impacts of climate change (extreme weather changes, sea level rise, and agricultural
productivity loss) and relevant political and economic factors. 19Country indexes are useful
for analysing which countries may contribute higher numbers of environmentally displaced
persons. Their main shortcoming, however, is that vulnerability can greatly vary for
different populations and regions within a country. This is due to variance in geographic and
social vulnerability of groups. For example in Bangladesh, rural communities on the
southern coast of the country are much more vulnerable than the capital city of Dhaka.
Research shows that lower social classes often suffer disproportionate levels of population
displacement. Hurricane Mitch struck Central America in 1998 and displaced about 2
million people.
17
IPCC Climate Change, Impacts, Adaptation and Vulnerability: Contribution of working group II to the
fourth assessment report of the Intergovernmental Panel on Climate Change 2007, CAMBRIDGE UNIVERSITY
PRESS, (2007).
18
Social Vulnerability Index, HAZARDS AND VULNERABILITY RESEARCH INSTITUTE, (2013),
http://webra.cas.sc.edu/hvri/products/sovi_details_2006.aspx.
19
David Wheeler, Quantifying Vulnerability to Climate Change: Implications for Adaptation Assistance -
Working Paper, 240, (2011).

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 SHOULD INDIA RECOGNISE “CLIMATE REFUGEES”?

This is where the socio-political, ethnic, and demographic problems of the country come
into the picture. There are several factors that need to be considered before putting forth any
such recognition to refugees or climate refugees. The primary problem of the country is the
lack of resources and infrastructure in sustaining a sudden spike in population. India is
already facing economic distress and putting forth legislation that welcomes more
population can prove hazardous for the country. It neither has the resources nor the
necessary infrastructure to sustain the population. This country is already home to around
250,000 refugees that are vulnerable to poverty and neglect. Thus, legislating policies that
favour the addition of such a population may do more harm than good to the country. Apart
from this, India believes that implementing such a policy might be a threat to its
sovereignty. The cross-border movements of India emanate from its past and had serious
implications on the structure and composition of labour market, political and demographic
stability, and security of the state. Myron Weiner, an American Political Scholar on India,
has addressed it multiple times that the borders of India are porous and lack any strict
political or military obstruction. Thus, there have been free cross-border movements that
have led to imbalances in the religious and linguistic composition of the country. The best
example of that is the condition of Assam where the number of migrants increased in such a
drastic way that it started tainting the cultural and linguistic composition of the population.
That is why Assam Accord, 1885, was signed between the State and the Government of
India which demanded the identification and deportation of those illegal foreigners,
predominantly the Bangladeshi immigrants.

However, the existence of these challenges and issues does not necessarily cease the
constitutional values of the country. Some of the fundamental rights, that are enshrined in
Part III of the Constitution of India, not only protect the citizens of India but also foreigners
or ‘aliens’, as the Constitution calls it. In the case of the State Trading Corporation Of India
Ltd v. the Commercial Tax Officer20, the Supreme Court laid down a list of fundamental
rights that were available to non-citizens. In that judgment, it was said that the Right to
Equality and Equal Protection of Law, mentioned under Article 14 is granted to citizens as

20
(2004) 2 CTC 105.

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well as non-citizens. Similarly, Article 21, i.e. the Right to Life and Personal Liberty, is also
granted to citizens as well as non-citizens. Thus, a violation of these fundamental rights of
Climate refugees will impede the constitutional values of the country.

In the aforementioned statutes of India which deal with the issue of refugees, i.e. the
Passport Act and Foreigners Act, it was deduced how the government had tight control over
the matter and how the same was vulnerable to political misconduct. Further, Articles 245
and 246 of the Constitution also empower the government to legislate laws for foreign
nationals and migrants. But this does not strip these people off of their constitutional rights.
In the case of Maneka Gandhi v. Union of India21, the Supreme Court laid down the rules of
‘due process clause in Article 21. The Court said that although Article 21 says, “No person
shall be deprived of his life or personal liberty except according to a procedure established
by law”, the government cannot establish any procedure which is arbitrary and violative of
the basic structure of the constitution. It has to follow the ‘due process’ as well, which
means the established procedure shall be ‘just, fair, and reasonable’ and not ‘arbitrary,
unfair, or unreasonable’. Article 14, the Right to Equality, is a part of the basic structure of
the Constitution. Hence, in the case of climate refugees, any law that discriminates them
arbitrarily is violating the basic structure. Moreover, even if the government wishes to treat
them differently, such policies must pass the tests of reasonable classification laid down in
the case of State of West Bengal v. Anwar Ali Sarkar22. These include two tests:

1) Intelligible Differentia: In this test, a particular classification must be treated alike

and the unlike must not be treated alike.
2) Rational Relation: In this test, the made classification should have a nexus with the
legislative intent of the statute or the act.

However, in the case of climate refugees, the state did not even legislate a law, let alone
qualifying arbitrariness tests. How fair will a lack of legislation be for the rising concern of
climate refugees? There already are several studies that reveal that refugees from Sri Lanka
or Tibet receive sufficient government protection, security, and attention but Muslim
migrants from Afghanistan or Bangladesh face discrimination and neglect. This begs the
question that what if the country witnesses a political shift and the new authorities choose to

21
(1978) 1 SCC 248.
22
1952 SCR 284.

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do otherwise? It is an assumption that is not only strong but also backed by historical
evidence. CAA, for instance, which was the product of the ideology of the current
government caused massive uproar across the country for being discriminatory. A similar
example is the Assam Accord which was an ideology of the then government. This shows
how a change in the political scenario of the country changes its approach towards these
people. It is necessary for India to realise that this problem is persistent and will increase in
the coming time. Neglecting the problem on the pretext of social and political imbalance is
not an acceptable excuse for not legislating laws that regulate climate refugees. Therefore, it
should be one of the prime priorities of the country to enact laws on this matter.

CONCLUSION

The BBC reports how those living in ‘climate hotspots’ often have limited natural
resources, such as drinking water and food. For example, crops and livestock struggle to
survive in areas that have become too hot and dry, or too cold and wet. Moreover, in such
conditions, “climate change can act as a threat multiplier, exacerbating existing tensions
and adding to the potential for conflicts.” Aljazeera explains that this produces a “domino
effect of disaster upon disaster triggered by climate change battering already impoverished
communities, leaving them no time to recover.” Hazards resulting from the increasing
intensity and frequency of extreme weather events, such as abnormally heavy rainfall,
prolonged droughts, desertification, environmental degradation, or sea-level rise and
cyclones are already causing more than 20 million people to leave their homes and move to
other areas, according the BBC. It is also important to note that often those living in climate
hotspots are those people that have nowhere else to go. The UNHCR describes how
refugees, internally displaced people, and the stateless are on the frontlines of the climate
emergency. Already struggling to survive, the effect of climate change has further worsened
their living conditions.

Consequently, some people have been forced to cross borders to escape the climate change
disasters. These people are in need of international protection, and refugee and human rights
law should therefore have an important role to play in this area. Al Jazeera describes the
warning of scientists that in the next few years “human movement across and within borders
due to climate change-related events will exponentially increase.” Human Rights First
describes how this will create new categories of migrants and refugees that will further

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strain already limited aid resources and refuel international tensions. This is particularly
tricky in a time when migration is fiercely debated in the international community and
refugees and asylum seekers are increasingly denied safety in many parts of the world. It is
vital to understand that unless countries implement policies to deal with this issue, further
potentially violent conflicts will arise, economies will suffer, and human suffering will
increase.

The UNHCR plays a leading role in the Global Protection Cluster for protecting and
assisting people who are forcibly displaced and cannot return home. The organisation can
“deploy emergency teams to support registration, documentation, family reunification and
the provision of shelter, basic hygiene and nutrition.” In 2020, UNHCR deployed teams to
assist in Central America where an estimated three million people had been affected by
Hurricane Eta. Similarly, when Tropical Cyclone Idai hit Mozambique, Zimbabwe, and
Malawi in March 2019, the UNHCR relocated refugee families to safer shelters and
provided them with tents, sanitation equipment and clean water. Similarly, the UNHCR has
been helping Rohingya refugees in southern Bangladesh to mitigate the effects of monsoon
storms, flooding, and landslides.

One of the clearest examples of climate refugees can be found in the Pacific Islands.
According to the Intergovernmental Panel on Climate Change the sea level is rising at a rate
of 12 mm per year and has already submerged eight islands, “prompting a wave of migration
to larger countries.” By 2100, it is estimated that 48 islands will have been lost to the rising
ocean. Human Rights First describes the 2015 case 23 of the Teitota family who applied for
refugee status in New Zealand, fleeing the disappearing island nation of Kiribati. Their case,
which was “the first request for refuge explicitly attributed to climate change” did make it to
New Zealand’s High Court but was later dismissed.

The position of climate refugees remains very difficult. Amnesty International explains that
according to the 1951 Convention relating to the Status of Refugees, a ‘refugee’ is defined
as a person who has crossed an international border “owing to well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a particular social group
or political opinion” In some contexts, the definition extends to persons fleeing “events
seriously disturbing public order.” It is therefore unclear whether climate refugees are
covered by the protection of the convention. Often climate refugees will have a valid claim

23
[2015] NZSC 107.

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for refugee status where the adverse effects of climate change interact with armed conflict
and violence. However, the term climate refugee is not endorsed by UNHCR, and it is more
accurate to refer to “persons displaced in the context of disasters and climate change.” I find
this language problematic because it implies that climate refugees are not refugees in the
same way that someone facing man-made violence is. The fatal effects of climate change are
clear, and there is no immediate evidence that it is improving - although we must keep
trying. What is needed now is immediate international action to recognize these refugees
and give them the aid they need.

Today, refugees are viewed as a peripheral concern, a kind of aberration from the normal
order of things. In a greenhouse-affected world of the future, they are likely to become a
prominent feature of our one-Earth land- scape due to the burgeoning phenomenon of
environmental dis- placement. It requires a leap of the imagination to envisage 150 million
destitute abandoning their home- lands, many of them crossing international borders. They
would be all the more disruptive in a world struggling to cope with a plethora of environ-
mental problems. Yet, amid discussions of global warming and its impacts, we hear all too
little about environmental refugees.

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