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PART ONE
Present Refugee Law:
Political and Legal Issues and Problems
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CHAPTER 1
The Question of Environmental Refugees
1. INTRODUCTION ā THE RECOGNITION OF ENVIRONMENTAL REFUGEES
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,1 and he includes in his discussion the concept of āecodevelopmentā coined in the resulting document. Like this concept, which has in recent times morphed into the watered-down notion of āsustainable developmentā, the definition of refugee is not totally fixed, according to El Hinnawi. As he writes:
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.2
By adding āin a broad sense, all displaced people can be described as environmental refugeesā, El Hinnawi places environmental refugees in a category that he views as primary or foundational, rather than simply viewing them as ādisplaced peoplesā. They are not accepted as legitimate refuge seekers, according to the 1951 Convention on Refugees (CSR), but rather as internally displaced persons (IPDs), not qualified to claim refugee status.
His argument is both correct and appropriate. In turn, he defines āenvironmental disruptionā as:
any physical, chemical and/or biological changes in the ecosystem (or the resource base) that render it temporarily or permanently unsuitable to support human life.3
This is the aspect of the issues confronting environmental refugees that is at the heart of this work: when the resource base, the integrity of the lands where a community resides, is destroyed, indeed it can no longer support human life. That has been the argument proposed by my work since 1994.4 If ecological integrity is central to human health and survival, as well as to the normal functioning of ecosystems, then its absence represents an attack on both health and survival, as well as on ecosystem function.
We are all affected in various measure, as I have argued, but the poor and those who live on the land are indeed the most vulnerable. Whether the flight that ensues is temporary or permanent, for most of these refugees it is indeed the dangerous circumstances in which they find themselves that defines their status, even when the circumstances are the result of conflicts or other non-environmental situations. Their numbers are often great, and their relocation poses immense problems even in their country of origin. Large migrations, an increasingly common situation today, may well do great damage to the area to which they relocate.5
The magnitude of the problem cannot be overstated. A Christian Aid report predicts that āgiven current trends, 1 billion people will be forced from their homes between now and 2050ā,6 and they add:
Stranded within their countries and largely ignored by the media, they are the worldās forgotten people. The numbered include:
ā¢ 50 million people displaced by conflict and extreme human rights abuse. This assumes a rate of displacement of roughly 1 million people a year, which is conservative;
ā¢ 50 million people displaced by natural disasters. Again this conservatively assumes that around 1 million people will be displaced this way every year;
ā¢ 645 million people displaced by development projects such as dams and mines (at the current rate of 15 million a year);
ā¢ 250 million people permanently displaced by climate change-related phenomena, such as floods, droughts, famines and hurricanes;
ā¢ 5 million people will flee their own countries and will be accepted as refugees.7
Already in 1994, the Almeria Statement on Desertification and Migration estimated that āthe number of migrants in the world, already at very high levels, nonetheless continues to increase by about 3 million each yearā.8 Norman Myers alerted the world to this emerging crisis as long ago as 1993,9 and in 2005 he revised his estimate,10 suggesting up to 200 million as a possible refugee number.11
However, Sir Nicholas Stern viewed that figure as āconservativeā and Myers has since once again revised his estimate.12 The daunting numbers of ecological refugees, that is the IDPs that comprise climate and other environmental refugees, as well as those displaced by economic oppression and toxic exposures engendered by ādevelopmentā and other industrial projects, are grave enough to warrant a thorough re-examination and discussion of present international law.
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 28 July 1951; into force 22 April 1954):
Article 1: Definition of the term ārefugeeā
A ā¦
(1) ā¦
(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 or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is 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.
The well-founded fear that is the basis of any refugeeās claim appears to be a single individualās sentiment, although, as we shall argue below, it may be viewed from several perspectives, even to apply to whole affected groups, the Jewish people of Nazi Germany being precisely such a group. Thus the original intent of this document is directed at the plight of single individuals, rather than large migrating groups. But, as El Hinnawi argues, environmental disasters ā whether wholly natural (such as earthquakes, droughts and tropical cyclones); partly natural, that is such that human activities play a significant role in their severity (such as floods, tsunamis and hurricanes of particular strength); or even those where human activities play a major role, such as melting ice and permafrost in the Artic, raising sea levels elsewhere ā are such that invariably large numbers are affected.
All of these disasters affect disproportionately the poorest people in the world, as they have no infrastructure or social services to protect them or to mitigate the environmental disastersā effects.13 In addition, land degradation and desertification also render various regions in the South uninhabitable, as does deforestation, as these phenomena generate a mass exodus from the affected region.14 Hence it is easy to understand why other countries and their governments, beyond the areas where the disasters occur, are not eager to open their doors, but content themselves with sending aid, at best. This āaidā is often inappropriate, insufficient and hard to distribute to those most at risk.15
Often environmental refugees simply attempt to migrate to a different area in their own country, perhaps to the cities. But these are both unprepared and unwilling to receive them and to support their many needs:
The End of the Line
When environmental refugees migrate to urban areas, they expect a ārosyā quality of life. But soon they find themselves in slums and squatter settlements. In such areas they are usually deprived of access to the basic facilities of drinking water and waste disposal. They are frequently forced to use open water for washing, cleaning and the disposal of waste in unhygienic ways; to break open municipal water mains; to use public places such as open ground to relieve themselves; and to live in makeshift shelters surrounded by accumulating domestic waste.16
Equally unacceptable are the so-called āenvironmental disastersā such as Bhopal, Seveso, Three-Mile Island or Chernobyl.17 The industrial operations we take for granted everywhere in developed countries and the developing world result in increasingly visible public health hazards that are not limited to the occasional spill, malfunction or other āaccidentā. In contrast, they render the conditions of life around their location hazardous for all, but impossible for those who live a traditional lifestyle on the land, as is the case particularly for isolated communities and indigenous peoples everywhere.18
Hence in this work we will consider the impact of these realities, exacerbated by globalization and climate change, as well as the proliferation of industrial chemicals. In this regard we will consider the CSR and other regulatory regimes regarding IDPs, as well as other international instruments regarding human rights and humanitarian law. Our goal will be to discover whether it is possible to find a legal avenue to mitigate the suffering of these millions of people, starting with the special plight of aboriginal peoples.
2. THE QUESTION OF ENVIRONMENTAL REFUGEES
One cannot delve into the morass of legal instruments, both international and domestic, that affect local communities and indigenous peoples, or the plethora of cases that pit aboriginal groups against corporate developers, without noting that 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, including:
1 the introduction of dozens of new chemicals into several areas of industrial production, from agricultural pesticides to cleansers, pharmaceuticals and house building pr...
