By Vositha Wijenayake and Vidya Nathaniel
Despite both mitigation and adaptation efforts, it is now widely recognised that residual negative climate change impacts, or loss and damage, cannot be fully avoided increasing the need to focus on addressing climate change. Countries in South Asia represent almost a fifth of the world’s population (1.5 billion) of which over 460 million live under the poverty line. India, Pakistan, and Bangladesh alone account for 95 per cent of the region’s population.
Recent disasters in South Asia demonstrate what could be a more frequent reality for the region. Floods in September 2012 displaced 1.5 million people in the North Eastern state of Assam, while Cyclone Aila, in 2009, displaced 2.3 million people in India and almost 850,000 people in Bangladesh. Poverty levels, coupled with the high incidence of extreme weather patterns, makes South Asia among the most vulnerable to climate change. The human rights perspective of climate change is important as it demonstrates the need to address loss and damage, which results in large scale displacement and migration.
Climate Induced Migration in South Asia
While different drivers of migration exist, it is anticipated that a rise in the sea level by one meter, will lead to the displacement of millions of people in Bangladesh. By the year 2100, it is estimated that the number displaced will range from between 13 to 40 million. While migration is primarily from rural to urban areas there are also reports of cross border migration, such as migration to India. In addition to this, there is temporary migration induced by extreme events such as cyclones which result in long lasting impacts such as the loss of livelihoods and ecosystem services, as well as loss of territory. It is likely while that loss and damage will lead to forced migration for many, the most vulnerable lack the social and the financial capital to move, may be trapped.
According to the Asian Development Bank (ADB), substantial and established flows of migration take place between India and Bangladesh, particularly to the Indian states of West Bengal and Assam. The ADB states “It has been suggested that this is the largest single international migration flow, with more people involved than estimated for top-ranked Mexico-United States migration flows.” Such migration has the potential to create conflict in the region, which needs to be taken into account when negotiating on climate change on global forums. Migration is not a lone event, but one that is complex. While it is created due to extreme events induced by climate change, the results have a social and economical impact, resulting in a large number of people moving into different areas.
The findings of the Working Group II Report of the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC), predict displacement of “hundreds of millions of people” due to land loss induced by climate change. This report states, “The majority affected will be in East Asia, South-East Asia and South Asia. Rising sea levels means coastal systems and low-lying areas will increasingly experience submergence, coastal flooding and coastal erosion”.
International Law and Climate Induced Migration
The Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, Walter Kälin, identified five climate change-related scenarios that may directly or indirectly cause human displacement. The scenarios, given below, provide a useful starting point for analyzing the character of displacement and assessing the protection and assistance needs of those affected:
In cases pertaining to hydro-meteorological disasters or environmental degradation causing international displacement, the internally displaced should be provided protection and assistance in accordance with the 1998 Guiding Principles on Internal Displacement. In these cases, the State of those internally displaced will have the primary responsibility for their protection. However, where those affected by disasters cross an international border, they will not come within the traditional concept of refugees in international law. Therefore, these displaced persons will not be entitled to international protection within the existing international refugee framework, nor would they necessarily be classified as migrants.
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. However, the United Nations High Commissioner for Refugees (UNHCR), does recognise that there are indeed certain groups of migrants, currently falling outside of the scope of international protection, who are in need of humanitarian and/or other forms of assistance.
A person who has been determined a refugee, should have satisfied the criteria under the 1951 Convention relating to the Status of Refugees, the 1969 OAU Convention, or UNHCR’s mandate. For this reason, just as a reference to an ‘economic refugee’ is not a reference to a recognized term under international law, neither are ‘climate refugees’ nor ‘environmental refugees’. This cries for the need for reform in laws and policies that will encompass those that are victims of climatic impacts, and yet are not protected by the norms that need to be for their protection as well.
Loss and Damage in Lima
The ‘Warsaw International Mechanism on Loss and Damage associated with Climate Change’ (Loss and Damage Mechanism) could be considered as a landmark in addressing increasing loss and damage from climate impacts. However, it succeeded in delivering only the bare minimum that could be considered acceptable to the developing countries. It also lacked reference to countries’ historical responsibilities for causing climate change and a meaningful commitment to provide additional financial resources, including the resources to provide rehabilitation and compensation to those who experience loss and damage. 
Ahead of the 20th Conference of Parties (COP20) of the United Nations Framework Convention on Climate Change (UNFCCC) many developing country submissions have emphasised the need to focus on the loss and damage mechanism in the context of the negotiations on the 2015 Agreement on Climate Change. The Least Developed Countries Group’s submission calls for specific international cooperation on insurance and risk transfer systems, assistance and coordination related to climate change displacement. It also proposes setting up a compensation regime in support of vulnerable developing countries. The submission by Alliance of Small Island States (AOSIS) stresses the need to address loss and damage separately from adaptation and to anchor the mechanism in the 2015 agreement.
At COP20, Parties will discuss the Loss and Damage Mechanism work plan for 2015-2016 based on the work of the Executive Committee in 2014 of which the current draft plan covers the main areas outlined in COP decisions. This includes the issue of migration and displacement.
In COP20 there needs to be clear progress on loss and damage, and this needs to include the adoption of the Warsaw International Mechanism’s two-year work plan, its modalities (including the set-up of a financial and a technical facility) and the composition of the mechanism’s governance body. Further, loss and damage needs to be featured as a key element to the draft text of the 2015 Agreement with a focus on human rights. With human rights for the first time forming part of the Agenda at COP20, it will be an opportunity to advocate for more focus on this issue of climate migration which is of great importance to the South Asian region.
A.Hasemann, E.Roberts, S.Huq, H.Singh, ‘Loss and Damage from the South Asian Perspective’, Climate Action Network South Asia, March 2014, Available at http://www.indiaenvironmentportal.org.in/files/file/Loss%20and%20Damage%20from%20the%20South%20Asian%20Perspective.pdf (Accessed on 27 Nov 2014)
 World Bank Data, 208
A. Bhattacharyya and M. Werz, ‘Climate Change, Migration, and Conflict in South Asia: Rising Tensions and Policy Options Across the Subcontinent’, Centre for American Progress, December 2012, Available at https://www.americanprogress.org/issues/security/report/2012/12/03/46382/climate-change-migration-and-conflict-in-south-asia/ (Accessed on 27 Nov 2014)
 A. Nishat, E. Roberts, N. Mukherjee, and A. Hasemann, ‘Loss and Damage from a Local Perspective in the Context of a Slow Onset Process: The Case of Sea Level Rise in Bangladesh’, Centre for Climate Change and Environmental Research, June 2013
 Environmental Change and Security Program, ‘Climate Change, Demography, Environmental Degradation, and Armed Conflict’, ECSP Report, Issue 13, 2008-2009,
 Alam.S, ‘Environmentally induced migration from Bangladesh to India’, Strategic Analysis Institute for Defense Studies and Analyses, 3:422-438, 2003
 Oliver-Smith. A, ‘Disasters and Forced Migration in the 21st Century, Understanding Katrina’, Perspectives of Social Sciences SSRC.org, 2006
 A.Hasemann, E.Roberts, S.Huq, H.Singh, ‘Loss and Damage from the South Asian Perspective’, Climate Action Network South Asia, March 2014
 A. Bhattacharyya and M.Werz, ‘Climate Change, Migration, and Conflict in South Asia: Rising Tensions and Policy Options Across the Subcontinent’, Center for American Progress, 2012, Available at < https://www.americanprogress.org/issues/security/report/2012/12/03/46382/climate-change-migration-and-conflict-in-south-asia/> (Accessed on 25.11.2014)
A. Bhattacharyya and M.Werz, ‘Climate Change, Migration, and Conflict in South Asia: Rising Tensions and Policy Options Across the Subcontinent’, Center for American Progress, 2012, Available at < https://www.americanprogress.org/issues/security/report/2012/12/03/46382/climate-change-migration-and-conflict-in-south-asia/> (Accessed on 25.11.2014)
 ‘Climate Change 2014: Impacts, Adaptation, and Vulnerability’ – IPCC Working Group II Contribution to AR5
Kälin, op cit.
 Mixed migration and associated gaps in the international protection regime featured prominently within
the High Commissioner’s Dialogue on Protection Challenges, held on 11 and 12 December 2007, The
Chairman’s summary of the dialogue is available at the following link: http://www.unhcr.org/refworld/
The Loss and Damage Mechanism was introduced in November 2013, at the 19th Conference of Parties (COP), to address loss and damage associated with the impacts of climate change, including extreme events and slow onset events, in developing countries that are particularly vulnerable to adverse effects of climate change.
COP20: Building A Fair And Just Climate Deal For The World’s Poorest People CARE International’s expectations for the 2014 climate talks in Lima, Peru, Sven Harmeling
 To be held in Lima, Peru, in December 2014.
 The Universal Climate Agreement is to be adopted at the Paris Climate Conference in 2015.
Submission by Nepal on behalf of the Least Developed Countries Group on the ADP Co-Chairs’ Non Paper of 07 July 2014 on Parties Views and Proposal on the Elements for a Draft Negotiating Text, Available at <http://www4.unfccc.int/submissions/Lists/OSPSubmissionUplo
Submission of Nauru on behalf of the AOSIS on its views on Loss and Damage in the 2015 Agreement, 04th Nov 2014, Available at < http://www4.unfccc.int/submissions/Lists/OSPSubmissionUpl
See article on the meeting in September 2014: S.Yeo, ‘UN inches forward with climate compensation plans’, 18 Sept 2014, Available at <http://www.rtcc.org/2014/09/18/un-inches-forward-withclimate-compensation-plans/>
About the Authors:
Vositha Wijenayake is the Policy and Advocacy Co-ordinator of CANSA and, Regional Facilitator for Asia for the Southern Voices Programme. She is a lawyer by profession and has an LLM from University College London. She specialises in International Environmental Law and Human Rights Law. She has been tracking the UNFCCC negotiations since 2009 with a legal and gender focus.
Vidya Nathaniel, , Attorney-at-Law, LLB (Hons), is a volunteer at SLYCAN. While she initially planned to pursue a career in corporate law, she has now developed a strong interest in research within the development framework and hopes to engage in more activities that would influence and bring about a positive change in society. She has only been on board SLYCAN since October 2013, and has thus far worked on broad areas dealing with matters of international law and more specific areas national measures implemented to address climate change.