Climate and Ecological Refugees: Beyond the 1951 Convention on the Status of Refugees

By,

Laura Westra, Ph.D., Ph.D.(Law)Professor Emerita (Philosophy)

University of WindsorSessional Instructor, Faculty of Law

Sessional Instructor, Faculty of Law, University of Milano (Bicocca)Sessional Instructor, Graduate Faculty of Environmental Studies, Royal Roads University

E-mail: lwestra@interlog.comWebsite: www.ecointegrity.net

Of thirty ways to escape danger, running away is best

(Old Chinese Proverb)

With these words, Essam El Hinnawi starts his 1985 Monograph on the topic of

Environmental Refugees. His starting point is the 1972 Stockholm Conference. Like

this concept, which has in recent times morphed into the watered down notion of

“sustainable development,” the definition of refugee is not totally “fixed,” according to

El Hinnawi. He says:

…environmental refugees are defined as those people who have been forced to

leave their traditional habitat, temporarily or permanently, because of a marked

environmental disruption (natural or triggered by people) that jeopardizes their

existence and/or seriously affected the quality of their life.

Victimizing the Victims: The Recognition of Environmental Refugees

Who is a Refugee?

The main problem with these large migrations lies in the definition of a refugee with its

strict limits, according to the Convention Relating to the Status of Refugees (Adopted on

28 July, 1951; into force 22 April, 1954):

Article 1. Definition of the Term “Refugee”

(1) …………..

(2) As a result of events occurring before 1 January 1951 and owing to well-founded fear

of being persecuted for reasons of race, religion, nationality, membership of a particular

social group of political opinion, is outside the country of it’s nationality and is unable or,

owing to such fear, 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.

...persons who have been forced to flee their homes suddenly or

unexpectedly in large numbers as a result of armed conflict, internal

strife, systematic violations of human rights or natural or man-made

disasters; and who are within the territory of their own country...

This definition comes a lot closer to the situation faced by indigenous

communities, and indicates an entirely different group from that if true “legal”

refugees according to the CR.

The Legal Status of Internally Displaced Persons

Economic Reasons or motivations alone will not entitle a person to refugee

status; but a government’s “economic measures” may well be the cloak for

action calculated to destroy the economic livelihood of specific groups; in such

cases a fear of persecution can be well-founded.

The concept of persecution, basic to the established “five grounds” required to support

refugee status is both complex and unclear. It appears to be intended exclusively to

establish status in individual cases, and it is problematic in the case of large migrations

due to various causes, including environmental disasters and unlivable conditions in

certain regions, due to both natural and man-made causes.

Introduction to the Five Grounds to Refugee Status to Establish Discrimination

The alien was to be protected, not because he was a member of one’s family, clan or religious community;

but because he was a human being. In the alien, therefore, man discovered the idea of humanity.

The UNHCR prescribes certain procedures to be followed regarding all applicants for asylum in all countries.

But the government of most countries find themselves in an invidious position as their obligation to apply the

CR to refugees at their borders often conflicts with the strong opinion of their constituents regarding these

admission:

In the context of Western host societies in particular, a discourse separating “deserving” refugees from those

deemed to be “undeserving” or “false”, governs and restricts the acceptance of refugees.

Most disturbingly, asylum seekers can be detained for failing to arrive with the necessary travel documents,

and can remain in detention for the entire length of the asylum process. And while many states have

established special holding centres for asylum seekers and irregular migrants, in other countries they are

detained in regular jails, alongside common criminals.

The evidence relating to the meaning and scope of non-refoulement in its treaty sense also amply supports

the conclusion that today the principle forms part of general international law. There is substantial, if not

conclusive authority that the principle is binding on all States, independently of specific assent.

State Protection and State Responsibility to Ecological Refugees

There are several areas of law that simply do not engage the reality of the present situation. The reasons for that lack of engagement are several, and they include,

Current Roots of the Problem

(a) The introduction of dozens of new chemicals into several areas of industrial production, from agricultural pesticides, to cleansers, to pharmaceuticals, and house building products;

(b) The development of hazardous systems of mining and extraction, as well as hunting and fishing devices, that exhaust natural systems;

(c) The lack of information and education relating to scientific research, endemic to both legislators and judges, information that would clarify the interface between the environment and public health;

(d) The aggressive emphasis on growth through capitalist structures inherent in globalization;

(e) The constant, ongoing depreciation of “the sacred” and of traditional values and knowledge, replaced by technical knowledge homogenized, rather than specific to places and peoples;

(f) The effect of the dividing “borders” between disciplines and the increasing territoriality of “experts” in various fields;

(g) The prevalence of well-paid “junk-science” supported by big business (e.g. big tobacco, big oil, big pharma), with nearly unlimited funds to support public opinion campaigns, and offer misleading “expertise” in legal cases;

(h) The unexamined persistence of the concept of legal personhood, with all its applicable “rights”, comparable to the rights of natural persons;

(i) The lack of an exhaustive definition of “aggression” in international Criminal Court; economic aggression needs to be added to the understanding of aggression as synonymous with armed conflicts; and finally

(j) The extension of the notion of responsibility to the comparable reach of our power, as – for instance – Agnes Michelot States, citing Hans Jonas: “…l’extension globale de notre puissance entraine de nouvelles forms de responsibilite’”.

Julian Ku suggest that “the first wave” consisted of “lawsuits…generally brought against foreign government officials, acting under the colour of foreign law”: some examples of this first period included the seminal case of Filartiga v. Pena Irala.(630 F.2d 876 (2d Cir.1980)) During this period that is, between 1980 and 1991, thirty-one lawsuits were filed.

The “Second wave” brought a dramatic increase in the number of cases (seventy-nine cases before 2000), and the cases targeted U.S. and foreign corporations, as they “aided and abetted” foreign governments in their violations of international human rights law. We will list some of these cases, in order to pinpoint their general approach to the human rights of individuals in developing countries, before turning to the most relevant period from our point of view: that is, the “third wave”.

Living Conditions in Local and Indigenous Communities: Corporate Responsibility under ATS: Doe v. Unocal Corporation (2002 W.L. 3.D 63976 (9 Cir. 2003))

Extractive Industries and Environmental and Health Harms; Jota v. Texaco (157 F. 3d 153 (2nd Cir. 1998))

Forced Relocation, War Crimes and Genocide: Bancoult v. McNamara (217 FRD 280, 2003 U.S.Dist.)

The plaintiffs in this case are persons indigenous to Chagos their survivors or direct descendants,… they bring this action against the United States and various current and former officials of State and the department of Defence (“the individual defendants”), for forced relocation, torture, racial discrimination, cruel, inhuman and degrading treatment, genocide, intentional infliction of emotional distress, negligence and trespass.

ATCA’s Jurisprudence “Three Waves of Litigation”

The related cases of Rasul and Al Odah arose because from 2002 onward, “more than 600 persons who had been captured abroad during hostilities between the United States and the Taliban regime in Afghanistan”, were detained at Guantanamo Bay. These cases are particularly relevant, I believe, because they raise the difficult question of detention and of its legality, in detail.

At issue is the question of indefinite detention, particularly in the aftermath of the enactment of the USA Patriot Act. In fact, in this Act, then Attorney General “Appears to authorize indefinite detention without either administrative or judicial process”.

“Detaining Plenary Power” is present in the U.S. at this time, although, technically, it does not exist in Canada or other countries discussed so far.

Detentions and uncertainties in the face of mounting human rights violations, especially regarding detainees, appears particularly ominous in the wake of the general lack of outspoken condemnation of present US practices regarding detainees, as the “legal conscience of the [US] Executive Branch, in the context of Abu-Ghraib,

...treated the torture prohibition as if it were a tax code, and as if the main function of the lawyer was not to ensure that the letter and the spirit of the law be honoured, but to find loopholes in the code.

Rasul v. Bush: The Implications-The Indefinite Detention and U.S. Plenary Power in

Zadvydas v. Davis

No state, acting alone, can insulate itself from major health hazards. The determinants of health (eg.

Pathogens, air, food, water, even lifestyle choices) do not originate solely within national borders. Health

threats inexorably spread to neighbouring countries, regions, even continents. It is for this reason that

safeguarding the world’s population requires cooperation and global governance (It is an oft-repeated truism,

that the poorest countries as well as the poorest peoples suffer the most. Among the latter, the “canaries,” or

the first affected and most vulnerable, are the children (especially 0-5), as “92% of all children that die under

the age of five are from low-income countries” (Lisa Heinzerling, 2008).

Finally, “mass congregation, migration, travel are the source of the spread of infectious diseases among

populations and geographical areas, as people” flee situations of famine, violence or war”:

The gross unsanitary conditions in refugee camps and other mass settings are deeply troublesome for a

public health and humanitarian perspective.

States owe physical protection to all their citizens, according to domestic instruments, such as constitutions.

But respect for all human beings is an international obligation erga omnes and no individual state can impose

inhumane conditions and claim legality for its actions, when asylum seekers show at their borders.

State Protection – Refugees and the Right to Health and Normal Function

The most relevant of the examples is the protection against racial discrimination elements of which are present in

all constitutions today, as that instrument embodies an absolute principle, as Judge Tanaka, for instance, indicated:

States which do not recognize this principle [i.e. the protection of human rights] or even deny its existence are

nevertheless subject to its rule.

Few, if any, states today would be prepared to claim that they officially “deny the existence” of human rights in

general, or that they support racial discrimination as such. Nevertheless the treatment of refugees, including

especially large groups of ecological refugees, indicates the presence of this sort of discrimination, in two separate

but related forms.

The first is the obvious result of “we-them” policies, aimed at denying access to the procedural or social/economic

rights of these individuals. The second represents an even more insidious form of discrimination: the presence, in

fact, the very existence of ecological migrants is ignored: they are the faceless alien; not only they have no voice in

policy/decision making, that is, in the decisions that render them essentially homeless, but they are also not

“present”, when policies and legal regimes are created that could at least offer them some protection “after the

fact”.

Race Discrimination: Revisited

Sacred areas are probably the oldest forms of habitat protection on the planet and still form a

large and mainly unrecognized network of sanctuaries around the world. A proportion of these

sites (probably a large proportion) are also highly successful at conserving natural ecology and

biodiversity.

The Links Between Religious Beliefs and Conservation

•Sacred places – both sacred natural sites and built environments existing in natural or

seminatural areas. These can contribute very directly to global conservation efforts because

they are often themselves well-conserved, through traditions that sometime stretch back for

thousands of years;

* Influence of faiths – through their philosophy, actions and influences, faiths can have a major

impact on the way their followers view the protection of nature.

Religious Beliefs: Holy Sites for Indigenous and Local Communities

A further weakness of the new UN system was that outside of the Genocide Convention, it

provided few protections from abuses against groups. This appears inconsistent, given that so

many crimes associated with World War II were perpetrated against collectives or against

individuals by virtue of their perceived membership of national, ethnic or religious groups.

We must consider the effects of diffuse economic oppression, characterized by the total

disregard for the rights of affected populations when climate change and trade-related harms

combine to wreak havoc on the lives of land-based communities and Indigenous populations.

Wolfgang Sachs says:

Indeed, it would be hard to understand why disease and malnutrition should be less important

than press censorship and religious persecution in affecting people’s ability to act.....A

minimalist conception of human rights that refers only to the negative political freedoms,

therefore, discriminates against the have-nots and those whose livelihood is threatened;

recognition of their dignity requires the protection of economic, social and cultural rights.

The Weakness of the UN and Crimes Against Humanity

The [Genocide] Convention was the first treaty since those of slavery and the “white slave traffic” to criminalize

peacetime actions by a government against its citizens. Since that time, customary international law has

recognized the de-coupling of crimes against humanity from wartime.

The Genocide Convention of 1948 defined that crime as requiring” an intent to destroy in whole or in part a

religious, racial, national or ethnic[al] group as such.” However, it is arguable that to cause the destruction of a

community “in whole or in part”, through wilful blindness, recklessness, negligence, or plain indifference, or as the

crime defined in U.S. law as “depraved indifference”, should not define a lower level of offence, one that might

merit less disapprobation or punishment.

the results of the present economic oppression of local communities in developing countries, are akin, if not equal,

in their effects to the consequences of many crimes against humanity; that starvation and the other deprivations of

extreme poverty, should be treated as belonging to the same category. “Climate refugees” as well as other

ecological migrants, suffer the worst consequences, as they are among the most vulnerable, without either

domestic or international protection.

Genocide or Crimes Against Humanity

At present, in a large number of states the systematic and deliberate violation of

human rights in an integral part of the governing process. Such violations include

genocide, official racism, large-scale terrorism; totalitarian governance; deliberate

refusal to satisfy basic human needs, ecocide, and war crimes. (Falk)

The situation of migrants includes most, if not all of the human rights violations listed

by Falk. We need to consider most aspects of their plight, from the inception of the

problems that cause the flight (e.g. “official racism”; “ecocide”; “deliberate refusal to

satisfy basic needs”), to their arrival and subsequent detention (e.g. “genocide” or at

least crimes against humanity). But in order to make this case, even in principle, we

need to acknowledge the true reach of human rights that have been breached to

create ecological or climate migrants, then ignore them, and finally when they attempt

to flee to survive, eventually to detain them like common criminals, rather than the

victims that they are.

Environmental Problems and Health Impacts: A Missing Link

Many have noted the “disconnect” between environmental issues, including climate change, and

human rights. That “disconnect”, is the root of the present problem of ecological refugees, and it

represents a grave obstacle to the protection of the most basic rights of the great numbers of people.

From the UNHCR’s early estimates, to those of the first scholar to consider “environmental refugees”,

who thought they would reach 24 to 50 mill, to the Almeria Statement (1994) that already suggested

a total of 135 mill, and Myers (2005) and Stern Review, who anticipated 200 mill by 2050; all the way

to Nicholls (2006), the Friend of the Earth, and finally the Christian Aid’s estimate of 645 mill, this is

not a negligible problem.

The missing link between the protection of international law and hazardous environmental conditions

including climate change, is the connection between human rights and environmental impacts:

There are admittedly many obstacles to using a human rights approach. As one scholar noted,

“existing right(s) must be reinterpreted with imagination and rigor in the context of environmental

concerns which were not prevalent at the time existing rights were first formulated”.

The Magnitude of the Problem

After all, as capital subsumes the economic life of society with the spread of

integrated systems of self-regulating markets operating within the geospatial contours

of modern nation states, it sunders the historical links between production and

consumption that characterized community existence since its dawn.

Unlike the victims of other crimes against humanity, ecological refugees bear a

double burden, as these groups are suffering from attacks both before and after the

“fact” of their flight. Technically they become refugees or internally displaced persons

only after they face the unbearable conditions in which they find themselves for

various reasons. Even in the case of “environmental disasters”, the displacement or

the conditions that cause the flight are---at least in part—the result of human agency,

with or without the intent to harm the affected communities.

Understanding the Issues: The Aetiology of Crimes Against Humanity

Despite the magnitude and reality of the crisis, and the widely acknowledged contributing

causes that produce it, the human right to a healthy environment is—at best—an

“emerging” issue today, as the pivotal connection between trade and environment/public

health is largely ignored.

The debate on this issue can never be solved while we attempt to adapt an

anthropocentric position, with the dubious “benefits” of development pitted against vague

“environmental concerns”. What is needed here is to raise clearly the question of justice,

that is, whose benefits, and whose choice should have primacy. Atapattu remarks:

It must be stressed that this discussion of a possible human right to a healthy environment

should not be viewed as advocating an anthropocentric approach to environmental

protection...At no point should the anthropocentric approach override or replace an

ecocentric approach to environmental protection.

The Need for a Bio-centric Approach-60 Years After the UNDHR

Ecological refugees are, by definition, severely affected by environmental factors, hence whatever

instrument may be devised to include their protection, must incorporate strong environmental

regulations, together with the clear acknowledgement of the interface between environmental factors

and human rights. The question of health as a right is already present in many international law

instruments, such as the U.N. Charter; the Universal Declaration of Human Rights, which requires a

“standard of living adequate for...health”; the International Covenant of Economic, Social and Cultural

Rights (ICESCR), mandating the “highest attainable standard of Physical and mental health”, as we

as the Preamble of the WHO’s Constitution, that declares health to be a “fundamental right of every

human being”.

Human well-being is highly dependent on ecosystems, and ecosystems are sensitive to human

activities. Ecosystem degradation in one geographic area affects other parts of the world; in this way

living systems (e.g. air, sea, forests and soil) are interconnected, as are people and places in the

world.

The Framework Convention of Global Health, if it will ever come to be, will be a powerful asset for the

protection of ecological refugees and of local and Indigenous communities everywhere.

Towards a Comprehensive Approach: Ecological Integrity for Global Governance