How will the world handle a rising tide of environmental refugees?
The world in which we live today is an extremely different one to that in which the Refugee Convention was formulated, andto the preceding era which laid the groundwork for its genesis. How valuable is any document or law drafted under such different conditions?
This paper will argue that the Refugee Convention as it stands is outdated, almost to the point of irrelevance, and yet the legacy of its genesis, and the political and ideological battles that have been waged around it, continue to affect its interpretation and implementation. As Goodwin-Gill claims, the Conventions persecution-oriented definition of a refugee continues to limit and confuse not only at the international operations level, but also in national asylum procedures 1 . The international community is at risk of failing to have developed and maintained the necessary legal instruments to uphold fundamental humanitarian values.
This paper will only briefly touch on the realpolitik question of whether a new system, or complete reworking of the existing Refugee Convention, is politically feasible. It will instead focus primarily on the single issue of environmental refugees, and how this issue illustrates the insufficiency of the Refugee Convention for mitigating, let alone resolving, refugee issues in the modern world. As UNHCR states, displacement generated by climate change and natural disasters will test the capability of the international humanitarian system. 2
The genesis and evolution of the Refugee Convention In the wake of World War II the international community was particularly conscious of the potentially destabilizing effects 3 of refugees displaced by the war and, in response, the
1 Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23, p.21 2 UNHCR, The State of the World's Refugees 2012: In Search of Solidarity (Oxford University Press, 2012) 3 ibid office of the United Nations High Commissioner for Refugees (UNHCR) was established on 14 December 1950, and the Convention Relating to the Status of Refugees 4 (the Refugee Convention) followed soon after at a special United Nations (UN) conference on 28 July 1951. The convention entered into force in April 1954.
The Refugee Convention is the key legal document in defining who is a refugee, their rights and the legal obligations of states 5 , and the UNHCR is mandated by the United Nations to lead and coordinate international action for the worldwide protection of refugees and the resolution of refugee problems 6 .
While UNHCR's mission is nominally based on the belief that everyone has the right to seek asylum and find safe refuge in another State 7 , this right (outlined in the prior Universal Declaration of Human Rights) is never mentioned in the Refugee Convention itself, although it is generally thought that this right is presupposed by the Convention 8 . Instead, the Refugee Convention focusses on defining what a refugee is, and creating a legal framework for how refugees must be treated by states.
The Refugee Convention defines refugees as people who: owing to a 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 such fear, is unwilling to avail himself of the protection of that country 9 .
For these refugees, thus defined, UNHCR has sought to find durable solutions, rather than short-term fixes. As UNHCR states, a durable solution, by definition, removes the objective need for refugee status by allowing the refugee to acquire or reacquire the full protection of a
4 Convention relating to the Status of Refugees, opened for signature 28 July 1951, (entered into force 22 April 1954) 5 UNHCR, The 1951 Refugee Convention <http://www.unhcr.org/pages/49da0e466.html> 6 UNHCR, History of UNHCR <http://www.unhcr.org/pages/49c3646cbc.html> 7 UNHCR, UNHCR - Mission Statement <http://www.unhcr.org/pages/49ed83046.html> 8 S. Kneebone, 'Introduction: Refugees and Asylum Seekers in the International Context - Rights and Realities' in S. Kneebone (ed) Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives (Cambridge University Press, 2009) 1-31 9 Convention relating to the Status of Refugees, opened for signature 28 July 1951, (entered into force 22 April 1954), Article 1 state 10 . The three broad categories of durable solutions are: voluntary repatriation, local integration and third country resettlement, and each has been emphasised at different points depending on the individual or group concerned, the ideological paradigm, and the political climate.
The history of persecution of Jews in Europe, culminating in the Nazi atrocities of WWII, and the Zionist movement, provided the template for the Refugee Convention and UNHCR 11 . The persecution of Jewish people, for reason of their religion, was the paradigm condition the drafters meant to encompass 12 . In fact, the convention was initially dramatically underfunded and only envisioned to help Europeans displaced by the war, a mandate that was only to last three years 13 . The UNHCR and the Refugee Convention are a product of their times and owe much to the positions of powerful states at its introduction, particularly the fact that the US was then entering its first period of disillusion with the United Nations 14 . In 1967 the geographical and temporal restrictions were removed in the Protocol Relating to the Status of Refugees 15 .
In the decades following the Convention, under the bipolar logic of the Cold War, refugees came to be understood primarily as those fleeing communist regimes. Under this logic, refugees were seen by the West as symbols of ideological triumph, as well as sources of intelligence. They became instruments of the Cold War and sources of espionage and information 16 , part of anti-communist foreign policy 17 . According to some, the Convention was written by Western states in code, as part of their own desire to give international legitimacy to their efforts to shelter self-exiles from the socialist states 18 . It is claimed that the US particularly pursued only its own self-interest and eliminated the need to distinguish economic migrants from political refugees, provided the individuals in question
10 UNHCR, The State of the World's Refugees 2012: In Search of Solidarity (Oxford University Press, 2012) 11 Howard Adelman, 'From Refugees to Forced Migration: The UNHCR and Human Security1' (2001) 35(1) International Migration Review 7-32 12 Andrew E Shacknove, 'Who is a Refugee?' (1985) Ethics 274-284, p.18 13 UNHCR, The 1951 Refugee Convention <http://www.unhcr.org/pages/49da0e466.html> 14 Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23 15 Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, vol. 606 (entered into force 4 October 1967) 16 Gil Loescher, 'The UNHCR and world politics: state interests vs. institutional autonomy' (2001) 35(1) International Migration Review 33-56 17 Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23, p.10 18 James C Hathaway, 'Reconsideration of the Underlying Premise of Refugee Law, A' (1990) 31 Harv. Int'l. LJ 129, p.151 came from communist or communist dominated countries 19
For the US, under the bipolar logic of the Cold War, combatting communism was their only real priority and the Refugee Convention was increasingly seen as offering an additional medium through which to pursue other strategic ends 20 . For example, in 1948 following the communist coup dtat in Czechoslovakia, the USs primary concern was that, if the Czechs leaving were not classified as refugees, and if voluntary repatriation were to be initiated, then the broader struggle against communism would be weakened 21
A complex issue of persecution According to Goodwin-Gill: [In t]he international refugee regime that emerged in the late 1940s and early 1950s [c]reated though confrontation, refugees were defined by the politics of denunciation in a persecution-oriented definition that continues to limit and confuse not only at the international operations level, but also in national asylum procedures 22 .
In fact, even at the time, the decision to base the new refugee definition on the concept of a well-founded fear of persecution was seen by several states as proof that the Convention was a political tool designed to condemn, to denounce, and provoke disorder in countries of origin 23
In this way, by accepting refugees from communist countries, the US was condemning those states, and communism itself, as causing harm to its citizens. An interesting counterpoint to this can be seen in the Australian treatment of Tamil asylum seekers. The Australian governments seems unwilling to grant asylum to Tamils, perhaps because it would equate to a condemnation of the Sri Lankan government, which is regarded as a friend. In the wake of media and public outcry over a boat of Tamil asylum seekers returned to authorities in Sri
19 Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23, p.10 20 Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23, p.11 21 ibid, pp.16-17 22 ibid, p.21 23 ibid, p.17 Lanka, without even proper refugee status determination (RSD). Prime Minister Abbott was quoted as saying ''Sri Lanka is not everyone's idea of the ideal society but it is at peace . . . a horrific civil war has ended. I believe that there has been a lot of progress when it comes to human rights and the rule of law in Sri Lanka.'' 24
Through its persecution-oriented definition, the Refugee Conventions focus is on causes rather than effects. The definition of a refugee within the Convention focuses solely on causes of harm in two separate ways: firstly through the use of the term persecution; and secondly by clarifying that the persecution must be grounded in reasons of race, religion, nationality, membership of a particular social group or political opinion 25 . This requirement, for persecution to be for the reason of those five things, is referred to as the nexus clause. In this way the harm itself is secondary to the reason, or cause of the harm and, by many readings, the harm is irrelevant on its own.
Unfortunately for refugees, there is a common failure by states to see persecution except within their own narrowly defined conception 26
Interpreting and implementing the Refugee Convention The Refugee Convention has been ratified by 145 nations, but, once ratified, the Convention must then be implemented into the national legal system. Fewer states have taken this next step and, even when they have, there is a large amount of discretion in how it is implemented. It is claimed that this discretion has led to implementation being done in such a way as to deny refugees the rights which are due to them under the international regime of refugee protection 27 . The undeniable trend is for industrialized nations to apply additional restrictive measures aimed at deterring or deflecting asylum seekers. Ignoring the true complexity of the migration-asylum nexus, which makes mixed flows of people with mixed motivation the
24 Tony Abbot, cited in Sarah Whyte, 'Tony Abbott praises Sri Lanka's human rights progress amid speculation Tamil asylum seekers were handed over to country's navy', The Sydney Morning Herald (Sydney), July 3, < http://www.smh.com.au/federal-politics/political-news/tony-abbott-praises-sri-lankas-human-rights-progress- amid-speculation-tamil-asylum-seekers-were-handed-over-to-countrys-navy-20140703-3b9qf.html > 25 Convention relating to the Status of Refugees, opened for signature 28 July 1951, (entered into force 22 April 1954) 26 J. Vernant, The refugee in the post-war world (Yale University Press, 1953), pp.15-16 27 S. Kneebone, 'Introduction: Refugees and Asylum Seekers in the International Context - Rights and Realities' in S. Kneebone (ed) Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives (Cambridge University Press, 2009) 1-31, p.1 true norm, nations juxtapose real refugees with mere economic migrants, and this false dichotomy, combined with security rhetoric, is then used to justify such restrictive measures 28
Running parallel to issues of implementation, is the complexity of interpretation. Throughout the history of the Convention there have been wildly varying interpretations of the refugee definition. As a result of its great practical impact, virtually every word of the core phrase of the refugee definition has been subject to interpretive dispute 29 .
While the well-founded aspect of the definition has acquired a fairly well-settled gloss 30 , having been decided by the highest courts of the United States, the United Kingdom and other states, there are still questions regarding the relative weight of well-founded versus fear. Does one bear more weight than the other, must a refugee prove both? Does the test require a subjective assessment of the applicants state of mind, their fearfulness? There has been great controversy surrounding these questions especially given that at times, refugee status may be denied to at-risk applicants who are not in fact subjectively fearful 31 . As the Michigan Guidelines state, the existence of subjective fearfulness in the sense of trepidation should neither be a condition precedent to recognition of refugee status, nor advantage an applicant who faces an otherwise insufficiently well-established risk 32
What about persecution? As Steinbock asks, What does it mean to be persecuted and that the persecution be for reasons of race, religion, nationality, membership in a particular social group, or political opinion? 33 . This issue is still very much contested. The nexus clause is one of the most difficult aspects of refugee determination today 34 , largely because, while
28 S. Kneebone, 'Introduction: Refugees and Asylum Seekers in the International Context - Rights and Realities' in S. Kneebone (ed) Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives (Cambridge University Press, 2009) 1-31 29 Daniel J. Steinbock, 'The refugee definition as law: issues of interpretation' in Frances Nicholson and Patrick Twomey (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes (Cambridge University Press, 1999) 13-36, p.14 30 ibid 31 University of Michigan Law School, International Refugee La: The Michigan Guidelines on Well-Founded Fear, 28 March 2004, available at: http://www.refworld.org/docid/467fa3fb22.html [accessed 5 July 2014], p.1 32 Ibid, p. 1 33 Daniel J. Steinbock, 'The refugee definition as law: issues of interpretation' in Frances Nicholson and Patrick Twomey (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes (Cambridge University Press, 1999) 13-36 34 James C Hathaway and Michelle Foster, 'Casual Connection (Nexus) to a Convention Ground, The' (2003) 15 Int'l J. Refugee L. 461, p.461 causation and intention are analytically distinct the two are commonly conflated in refugee law 35 .
Another point of controversy is the question of what constitutes a social group? For example, gender issues such as female genital mutilation, fit only very uncomfortably into the category of social group and, at least until recently, homosexuals were not viewed as a social group and thus did not fulfill the nexus requirement. Both of these examples of vexed social group qualifications have generated a large academic literature, and much case law 36 .
There are those who argue that in the object and purpose of the Convention social group is meant only to pertain to class-related groupings. Under this interpretation, persecution for reasons of gender or sexuality are not covered by the Convention at all. As Shacknove discusses, there has been an incremental trend towards defining women as a social group but this was most likely not contemplated by the drafters of the Convention for whom it can be argued the whole concept of social group persecution in general ought not be extended much beyond the sense of social class 37 .
It must be taken into account that, persecution for reasons of homosexuality was not perceived as a problem by the High Contracting Parties when the convention was being drafted 38 . Nevertheless, the issue is important because a huge gulf has opened up in attitudes to and understanding of gay persons between societies and it is one of the most demanding social issues of our time 39 . It can be argued that the fact that the issue of persecution on grounds of sexuality, or gender, was not considered by the drafters, is a reason to allow a broader definition of social group. Such an extension of protection under the Convention can be argued to be consistent with the object and purpose, given that it is persecution and, rather than being considered and rejected, it was simply ignored, unsurprisingly given the historical era.
In recent decades there has been a shift whereby refugee claims increasingly arise from civil wars, rather than intrastate wars or repressive authoritarian governments. Circumstances of
35 Ibid, p.461 36 See LORD HOPE, 'Case Law HJ and HT v SSHD' (2010) 22(4) International Journal of Refugee Law 623- 672 37 Andrew E Shacknove, 'Who is a Refugee?' (1985) Ethics 274-284, p.29 38 ibid,, p.623 39 ibid, p.624 civil war, further muddy the water of refugee determination under the Convention. Civil conflict, by its nature is messy and may obscure the boundaries between combat, crime and persecution 40 . Refugees fleeing these situations may have difficulty proving the nexus between their persecution and one of the five grounds. The reason for their persecution may indeed be unfathomable 41
There are two primary ways in which the Convention can be interpreted, although they are not mutually exclusive: the first is a plain reading of the textual meaning (perhaps including the drafting history); the second is an approach based on the object and purpose of the definition. As Steinbock points out, a proper interpretation must take the object and purpose into account, as, in isolation, a textual reading can have unanticipated effects, with both restrictive and expansive results 42 . Not only does a plain reading often lead to unpredictable results, but it can easily contravene another convention, the Vienna Convention on the Law of Treatise 43 . According to Article 31 of the Vienna Convention a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in context and in light of its object and purpose 44 (emphasis added).
Despite this, an ordinary or plain meaning textual approach has often been taken, sometimes with egregiously narrow results. For example, in the US Supreme Court the case of Immigration and Naturalization Service v. Stevic 45 concluded that, even if well-founded fear of persecution has been established, a claimant may be returned to their country of origin unless they can prove that it is more probable that persecution will occur than not. The result of such conclusions can be seen in state policy such as Australias recent decision that asylum seekers will be sent home if they have less than fifty percent chance of facing torture and persecution 46 .
40 Andrew E Shacknove, 'Who is a Refugee?' (1985) Ethics 274-284, p.34 41 ibid, p.34 42 Daniel J. Steinbock, 'The refugee definition as law: issues of interpretation' in Frances Nicholson and Patrick Twomey (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes (Cambridge University Press, 1999) 13-36 43 United Nations, Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, (entered into force 27 January 1980) 44 ibid, p.12 45 INS v. Stevic (1984) 467 US 407 46 Migration Amendment (Protection and Other Measures) Bill 2014 2014 (The Parliament of the Commonwealth of Australia) As Shacknove argues, not only are there significant questions as to whether such textual readings are true to the object and purpose of the Convention, this approach is simply inadequate to respond to the myriad circumstances that bring asylum seekers to invoke refugee status 47 .
Partially perhaps in response to perceived lack of clarity, or inadequacies in the Refugee Convention, there have also sprung up many complementary and/or competing systems, organisations and documents which either broaden, or narrow the definition. The range of these far exceeds the allotted length for this paper, but an important example is the 1969 Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa. This Convention broadens the refugee definition, removing the requirement for persecution by adding to the standard definition: the term refugee shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality. 48
This definition of refugee represents a salient challenge to the proposition that persecution is an essential criterion of refugeehood. 49
Durable solutions as reparation? There is an argument made that finding durable solutions for refugees could, and perhaps should, be viewed as a form of reparation, rather than simply humanitarianism 50 . This idea goes against the rhetoric of refugee issues being non-political, as it requires the apportioning of responsibility, perhaps even blame, but, as has been shown, refugee issues have rarely been approached in an entirely non-political manner, regardless of rhetoric. As Loescher argues, In
47 Andrew E Shacknove, 'Who is a Refugee?' (1985) Ethics 274-284, p.17 48 Convention Governing the Specific Aspects of Refugee Problems in Africa ("OAU Convention"), opened for signature 10 September 1969, (entered into force 20 June 1974) 49 Andrew E Shacknove, 'Who is a Refugee?' (1985) Ethics 274-284, p.275 50 James Souter, 'Durable Solutions as Reparation for the Unjust Harms of Displacement: Who Owes What to Refugees?' (2014) 27(2) Journal of Refugee Studies 171-190 practice, of course, UNHCRs work has been inescapably political 51 and it is perhaps unrealistic to imagine that the problem of refugees can ever be entirely non-political 52
(emphasis added). According to Souter, and other proponents of a reparation based approach to refugees, durable solutions may potentially constitute a means through which states can discharge their special obligations towards refugees for whose flight they are morally responsible 53 . According to Duthie 54 reparations, and transitional justice mechanisms could be useful in achieving durable solutions for refugees. Through these mechanisms, durable solutions, be it repatriation, integration or resettlement, can rectify past injustices 55 . As Souter goes on to explain, this approach could not, and should not replace a humanitarian approach as both have important roles to play 56 . A reparation based approach alone would certainly be insufficient, as it would leave refugees who were victims of persecution by a rogue state entirely without protection, and would require that responsibility be apportioned for every refugees circumstances before action could be taken. Arguably, where this approach functions best, is as a complement to humanitarian protection goals, where recognition of the reparative value of durable solutions can act as part of an overall effort to identify the full range of moral obligations that states bear to refugees and perhaps motivate practical efforts to hold states to those obligations 57 . A workable approach to refugee issues will always need to marry humanitarian moral duties with the political realities in some manner, we must always ask whether the politics of protection at any particular moment are humanitarian or whether they serve primarily other purposes, in which the refugee is merely instrumental 58
51 Gil Loescher, 'The UNHCR and world politics: state interests vs. institutional autonomy' (2001) 35(1) International Migration Review 33-56, p.2 52 Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23 53 James Souter, 'Durable Solutions as Reparation for the Unjust Harms of Displacement: Who Owes What to Refugees?' (2014) 27(2) Journal of Refugee Studies 171-190, p.172 54 R. Duthie, 'Contributing to Durable Solutions: Transitional Justice and the Integration and Reintergration of Displaced Persons' in R. Duthie (ed) Transitional Justice and Displacement (Social Science Research Council, 2012) 37-63 55 James Souter, 'Durable Solutions as Reparation for the Unjust Harms of Displacement: Who Owes What to Refugees?' (2014) 27(2) Journal of Refugee Studies 171-190 56 ibid, p.172 57 ibid, pp.172-73 58 Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23 Environmental refugees, a singularly unprotected group Whilst there are many competing interpretations of almost every part of the Refugee Convention, including its basic purpose, there can be little argument that, despite rhetoric about solving the refugee problem, the Convention is, as Goodwin-Gill claims, persecution-oriented and can be viewed as aiming to protect individuals and groups from discrimination and persecution, and not those who experience harm or displacement in the absence of discrimination or persecution. The clear focus is on causes.
What does all of this mean for the relatively new, and rapidly growing category of environmental refugees? While a reading of the Convention in good faith, and based on the object and purpose may help to rule out some of the more egregiously non-humanitarian interpretations of the refugee definition, it cannot help to recognise environmental refugees. The persecution-oriented refugee definition leaves little room for interpretation. Environmental refugees are not being persecuted, or if they are, that persecution is not the cause of their harm and/or displacement. For this reason, almost no reading of the Refugee Convention can offer protection to environmental refugees. It is clear from a reading of a drafting history of the Refugee Convention that they explicitly rejected more general terms for the definition in favour of a well-founded fear of being persecuted for reasons of race religion, nationality and political opinion 59 .
Some claim that the object and purpose of the Convention is based on more general human rights, due to the Preamble to the Convention which states:
Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination 60
This approach makes a shift from causes to effects. Aleinikoff claims that Persecution might well be given a free-standing meaning not one that necessarily invokes the five grounds of
59 Andrew E Shacknove, 'Who is a Refugee?' (1985) Ethics 274-284, p. 17 60 Convention relating to the Status of Refugees, opened for signature 28 July 1951, (entered into force 22 April 1954) the test 61 . According to this argument, a lack of basic human rights, in and of themselves, could represent persecution.
This would be, regardless of the humanitarian motivation, as egregious a failure to interpret the Convention in good faith as more narrow interpretations are. While it is now well established that the meaning of persecution should be interpreted within a human rights framework 62 , insofar as the actions which amount to persecution should be human rights based, this does not, and cannot, alter the meaning of the word persecution. While human rights violations can, and often do, amount to persecution, they must take place is a manner that is discriminatory in some way. As Shacknove plainly states, refugee law, predicated on the two great paradigms of the post-war period: the rights of non-discrimination and free expression says, in effect, that harm cannot legitimately be premised on an individuals personal characteristics or status 63 . A purely human rights based approach, which ignored the persecution-oriented definition in the Convention, would represent an attempt to extract a purpose from the language and then subordinate the language to the discovered purpose. 64
Whilst one might argue that the drafters of the Convention, given their era, might not have considered issues of persecution based on gender and sexuality (thus opening the door to a broader interpretation of the grounds for persecution), it is hopelessly unrealistic to think that, given the mention of the UDHR in the Conventions Preamble, and its recent implementation, that the drafters were not well aware of the nature of human rights violations and their relationship to persecution. If the drafters had meant that a violation of human rights (as laid out in the UDHR) equated to persecution, they would have said so.
Given this, one might ask whether the issue of environmental refugees need be considered under the Refugee Convention at all. Should the refugee definition be kept narrow in order to maintain its value, and ensure the protection of real refugees, as defined by persecution?
61 T Alexander Aleinikoff, 'The Meaning of Persecutionin United States Asylum Law' (1991) 3(1) International Journal of Refugee Law 5-29, p.5 62 S. Kneebone, 'Introduction: Refugees and Asylum Seekers in the International Context - Rights and Realities' in S. Kneebone (ed) Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives (Cambridge University Press, 2009) 1-31, p.4 63 Andrew E Shacknove, 'Who is a Refugee?' (1985) Ethics 274-284pp.20-21 64 ibid, p. As Goodwin-Gill argues: just as the politicization of protection can constrain options for action, so too can over-emphasis of otherwise self-evident humanitarian considerations. Both the idealist and the realist are often rather too detached from the facts on the ground and the consequences of pursuing short-term goals 65 .
In other words, we must be careful not to throw out the baby with the bath water in a well- intentioned, idealistic attempt to increase access to the legal framework of the Refugee Convention.
There were approximately 33.9 million persons classified as people of concern by UNHCR in 2011, an increase from 19.2 million just 6 years earlier 66 . There are currently 45.2 million forcibly displaced persons worldwide 67 , with that number all but certain to grow dramatically in coming years. As UNHCR states, Global social and economic trends indicate that displacement will continue to grow in the next decade 68 . Displacement will not only continue to grow, but trends and patterns will change due to factors such as population growth and urbanization, and, of course, climate change and natural disasters 69 . Climate change and environmental degradation will affect not only the scale, but the complexity of human displacement 70 . It is important to ask, as Steinbock does, Which foreign victims of oppression or hardship should we shelter? 71
What must be understood is that the issue of environmental refugees does not take place in a vacuum. While there are certainly complex issues surrounding the separation of environmental refugees from economic migrants, and questions of a hierarchy of protection, if environmental refugees are not offered appropriate protection by the international community then the issue will undoubtedly result in increasing tension in poor and unstable
65 Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23, p.21 66 UNHCR, The State of the World's Refugees 2012: In Search of Solidarity (Oxford University Press, 2012), p.5 67 UNHCR, Facts and Figures about Refugees' (nd.) <http://www.unhcr.org.uk/about-us/key-facts-and- figures.html> 68 UNHCR, The State of the World's Refugees 2012: In Search of Solidarity (Oxford University Press, 2012), p.5 69 ibid, p.5 70 ibid, p.26 71 Daniel J. Steinbock, 'The refugee definition as law: issues of interpretation' in Frances Nicholson and Patrick Twomey (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes (Cambridge University Press, 1999) 13-36 regions and, almost certainly, an increase in conflict (thus increasing the numbers of real refugees who fit the persecution-oriented definition). In 1985 Shacknove gave an elegant example of this issue, which I will recreate here in full:
Currently approximately 90,000 persons are fleeing starvation in Mozambique and crossing into Zimbabwe, yet the United Nations High Commission for Refugees (UNHCR) and other agencies are not mobilizing on their behalf. The rationale is that these persons are not victims of persecution and therefore do not come under the mandate of the High Commissions Statute. The reluctance of the international community to offer its assistance not only condemns these persons to yet more suffering but also forces Zimbabwe, whose own population is starving, to offer asylum unilaterally, thus further destabilizing Southern Africa 72
While this is an eloquent, and elegant example of the issues in play, today, and especially in the near future, the numbers of people at risk are vastly greater than 90,000, and the stakes much higher.
Who are environmental refugees, and how many are at risk? The definition of what might constitute an environmental refugee remains vague, largely due to their lack of representation in any formal international agreement, but, estimates suggest there could be 200 million by 2050 73 .
Climate change will cause displacement in a myriad of ways: Increased natural disasters natural disasters have already increased from 133 in 1980, to an average of 350 per year in recent years 74 . Environmental degradation and slow-onset disasters such as loss of productive agricultural land and desertification. Inundation caused by rising sea levels an issue of immediate relevance to low lying island states.
72 Andrew E Shacknove, 'Who is a Refugee?' (1985) Ethics 274-284, p.276 73 Derek R Bell, 'Environmental refugees: What rights? Which duties?' (2004) 10(2) Res Publica 135-152 74 UNHCR, The State of the World's Refugees 2012: In Search of Solidarity (Oxford University Press, 2012) Conflict and violence sparked by resource scarcity which will be especially relevant if environmental refugees arent dealt with proactively.
The concept of environmental refugees was first developed by the United Nations Environment Programme (UNEP) in 1985, and was defined by UNEP researcher El-Hinnawi as: those people who have been forced to leave their traditional habitat, temporarily or permanently, because of a marked environmental disruption (natural and/or triggered by people) that jeopardized their existence and/or seriously affected the quality of their life 75 .
A problem with this definition, as pointed out by Bates 76 , is that it makes no distinction between victims of different kinds of environmental disruptions, despite them having dramatically different needs, and thus requiring different approaches. On the one hand, for a person displaced by a natural disaster, such as a flood or a volcanic eruption, a durable solution would most likely entail short-term asylum followed by repatriation assistance; on the other hand, for a person displaced by long-term environmental issues such as desertification or rising sea-levels, a durable solution would most likely entail integration in the state of asylum, or resettlement in a third country. To gloss over such distinctions, is to ignore the reality of environmental displacement and, as Bates warns, So many might be classified under the umbrella of environmental refugee that critics question the usefulness of the concept 77 .
In fact, a number of critics have questioned the very concept of environmental refugees, regardless of the definition. Richard Black has called the concept unhelpful and unsound in intellectual terms, and unnecessary in practical terms 78 . The complaints are primarily that: the term environmental refugee oversimplifies the causes of forced migration; there is no evidence of large-scale displacements caused by environmental disruptions; that it is a strategic mistake to broaden the meaning of the term refugee in such a way because the inherent complexity of the environmental refugee category, and the potential numbers that
75 Essam El-Hinnawi, Environmental refugees (UNEP, 1985); Norman Myers and Jennifer Kent, Environmental exodus: an emergent crisis in the global arena (Climate Institute, 1995) 76 Diane C Bates, 'Environmental refugees? Classifying human migrations caused by environmental change' (2002) 23(5) Population and environment 465-477 77 ibid, p.466 78 Richard Black, 'Environmental refugees: myth or reality?' (2001) might fall under its umbrella, could encourage nations to shift increasingly towards treating all refugees as economic migrants 79 .
In 1989, Tolba, the then Executive Director of the United Nations Environmental Program (UNEP), warned that as many as 50 million people could become environmental refugees 80
and, the following decade, Norman Myers was sounding the alarm that refugees were already, or would soon become, the largest group of involuntary migrants 81 . According to Myers, in 1995, there are at least 25 million environmental refugees today, a total to be compared with 22 million refugees of the traditional kind the total number may well double by the year 2010 if not before 82 . He claimed that wealthy nations had a choice: export the wherewithal for sustainable development or import growing numbers of environmental refugees 83
As we have seen in the almost decade since, there is a third option, business as usual and the adoption of what Bell calls a lifeboat ethic: denying refugee rights to the environmentally displaced and treating them as a security issue 84 . As Bell points out, Current policies high levels of consumption, resource use and waste production; low levels of humanitarian aid; environmental degradation promoted by multinational companies; and ever-tighter immigration and asylum policies suggest that the developed world has chosen the third option. 85
Environmental refugees, who is responsible? While environmental refugees are, and will be, displaced by a complex and varied range of issues, by far the largest driver is certain to be climate change. That the responsibility for climate change does not rest equally on all people or all nations is beyond dispute. The same historical activities which have driven climate change have allowed exponential growth in the worlds
79 Derek R Bell, 'Environmental refugees: What rights? Which duties?' (2004) 10(2) Res Publica 135-152 80 Diane C Bates, 'Environmental refugees? Classifying human migrations caused by environmental change' (2002) 23(5) Population and environment 465-477 81 Norman Myers, 'Environmental refugees' (1997) 19(2) Population and Environment 167-182 82 Norman Myers and Jennifer Kent, Environmental exodus: an emergent crisis in the global arena (Climate Institute, 1995) 83 ibid, p.136 84 Derek R Bell, 'Environmental refugees: What rights? Which duties?' (2004) 10(2) Res Publica 135-152, p.138 85 ibid, p.138 wealthy nations. While, arguably, the entire human population has benefited from industrialisation and economic growth, it is a benefit that has accrued disproportionately to those in the industrialised nations themselves 86 . Given this, it is, or at least should be, easily apparent who is responsible: responsibility should fall to each country in proportion to the amount that the country has contributed to causing the problem 87 .
The worlds poor and developing nations are simultaneously at the greatest risk, with the least capability to adapt to and mitigate change, and have the least responsibility for the impending crisis. As climate change advances droughts, floods and famines will become more common, and poor nations tend to be far more reliant on agriculture for basic subsistence, and for its significantly larger percentage of their GDP 88 . There are also the dramatic cases of low-lying island nations which are already seeing internal displacement and whose entire countries could soon be uninhabitable due to sea-level rise 89 .
Given the role that developed nations have played in creating environmental burdens, it seems clear that there is an injustice that must be rectified. Therefore it seems logical that those displaced by climate change related environmental disruption should be offered durable solutions as an act of reparatory justice.
Nevertheless, as the Refugee Convention stands, environmental refugees, given that they are not persecuted, are not protected by the Refugee Convention. Regardless of responsibility or justice, the Convention simply does not cover environmental refugees. Does this mean that those displaced by environmental disruptions can only be dealt with once rendered stateless, after their island has been taken by rising sea levels, or their government and society have collapsed due to loss of productive land or natural disasters?
As unsatisfactory as this solution would be, given that displaced, but not persecuted, environmental refugees would unquestionably cause increased instability and conflict in
86 P. Singer, Practical Ethics (Cambridge University Press, 2011), p. 220 87 ibid, p.220 88 See for example, Pradeep Kurukulasuriya, et al., 'Will African agriculture survive climate change?' (2006) 20(3) The World Bank Economic Review 367-388; Peter G Jones and Philip K Thornton, 'The potential impacts of climate change on maize production in Africa and Latin America in 2055' (2003) 13(1) Global environmental change 51-59; John F Morton, 'The impact of climate change on smallholder and subsistence agriculture' (2007) 104(50) Proceedings of the national academy of sciences 19680-19685 89 Justin T Locke, 'Climate changeinduced migration in the Pacific Region: sudden crisis and longterm developments1' (2009) 175(3) The Geographical Journal 171-180 vulnerable regions of the world, even here the Convention often fails, as displaced stateless persons are one of the groups least likely to find durable solutions. In fact statelessness persists almost everywhere 90 , despite the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. A telling example of this can be found in the protracted crisis of Palestinian refugees, where Statelessness has dominated and shaped the lives of four generations of Palestinian refugees since their exodus in 1948 91 . The issue of Palestinian refugees is particularly thorny because it was the Zionist movement, and the formation of the Jewish state of Israel, so tied up in the genesis of the Refugee Convention, which displaced them in the first place.
What we need is a new legal instrument 92 but there is a distinct lack of political will.
Changing definitions, changing conventions? Is the problem then insurmountable? Could the definition of a refugee under the convention be shifted away from persecution towards the idea of simply lacking the sufficient protection of a state? The first formal description of a refugee, introduced in 1926 by the League of Nations High Commissioner for Refugees took the relatively non-controversial, at least at the time, approach of focusing on being outside the country of origin and not enjoying its or another countrys protection 93 .
Would the international community, and particularly vulnerable individuals and communities, be better served by a refugee definition which focused wholly on the responsibility of a state to protect its citizens? Under such a system, if individuals were not protected from certain harms, for whatever reason, they would be classified as refugees through the failure, or inability of their state to protect them from said harms.
It may be easy to argue that we in the wealthy world owe environmental refugees durable solutions as a form of reparation but, regardless of moral obligation, idealist statements do
90 UNHCR, The State of the World's Refugees 2012: In Search of Solidarity (Oxford University Press, 2012), p.15 91 Abbas Shiblak, 'Stateless Palestinians' (2006) 26(2006) Forced Migration Review 8-9 92 Bonnie Docherty and Tyler Giannini, 'Confronting a rising tide: A proposal for a convention on climate change refugees' (2009) 33 Harv. Envtl. L. Rev. 349 93 Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23, p.11 little to resolve complex issues. That said, without an appreciation of, and commitment to, justice, the entire liberal democratic project is jeopardized. According to Bell, the question of justice for environmental refugees is twofold: what are our responsibilities to actual environmental refugees?; and what are our responsibilities to potential environmental refugees? 94
Would extending refugee rights to environmental refugees open the door to economic migrants whose harm is solely through the economic failure of their state? How could we delineate between those harms caused by environmental degradation on the one hand and poverty on the other? Many issues of environmental damage could, in theory at least, be avoided or mitigated through public infrastructure, education and technology, so finding a line between the two would be exceedingly complex. Simultaneously, if environmental displacement is partly, or primarily due to state failure, could that be understood to represent a form of persecution? If inequality within a nation is stark, and/or corruption rampant in the ruling class, does their failure to protect poor and powerless citizens of their nation from the ravages of environmental change represent persecution based on a lower social class?
The issue of environmental refugees is illustrative of the broader problems with the Refugee Convention: its persecution-oriented definition and its nexus requirement of the five grounds which the persecution is for the reason of.
Who are refugees? In order for the Refugee Convention to function as a framework for the protection of displaced persons, we must understand where the outer boundaries of the definition might lie 95 . Without such boundaries the Convention would amount to meaningless feel good rhetoric, but where should those boundaries lie?
Would the international community, and refugees, be better served by continuing to exclude those not explicitly, or implicitly, referred to in the refugee definition? As Shacknove suggests it might be sensible to be especially careful to give priority to those who
94 Derek R Bell, 'Environmental refugees: What rights? Which duties?' (2004) 10(2) Res Publica 135-152 95 Andrew E Shacknove, 'Who is a Refugee?' (1985) Ethics 274-284, p.35 unquestionably are covered by the Conventions text and purpose 96 . Would a new convention offer the best results for both environmental refugees, and those already covered by the Refugee Convention? Angela Williams argues that we need a regionally oriented regime operating under the auspices of the UN Climate Change Framework 97 , claiming that a refugee approach to environmental displacement in ineffective due to the Refugee Convention and widespread confusion and skepticism regarding the terminology relating to environmental refugees 98 . Whereas, in Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees 99 , Docherty and Giannini claim An independent convention is the best option 100 and lay out a roadmap for exactly such a new convention.
If we accept Docherty and Gianninis premise, or even Williams, we must ask how realistic it is that a new system could be created, and accepted (not to mention implemented) by a large range of states, in a timeframe and manner which would meaningfully improve protection for victims of environmental degradation and climate change? Given this difficulty (it could reasonably be claimed impossibility), and given the sheer number and desperate need of existing and expected environmental refugees, might it be more important that these people have some degree of protection under the existing Convention, than that we continue to exclude them for the sake of the already imperfect protection of refugees who fit the persecution-oriented definition of the Refugee Convention?
Conclusion While this paper does not purport to have the answers or a solution, certainly not an easy or immediate one, it has attempted to elucidate the reality of the current Refugee Conventions inability to sufficiently protect displaced persons. A combination of changing times, a politically and ideologically fraught history and present, disagreements on its object and purpose, and the persecution-oriented nature of the refugee definition render the Convention incapable of responding adequately to the realities of the refugee issue in the
96 ibid 97 Angela Williams, 'Turning the tide: recognizing climate change refugees in international law' (2008) 30(4) Law & Policy 502-529, p.502 98 ibid, p.503 99 ibid 100 Bonnie Docherty and Tyler Giannini, 'Confronting a rising tide: A proposal for a convention on climate change refugees' (2009) 33 Harv. Envtl. L. Rev. 349 modern world. Nevertheless, it is unquestionably better than the easiest alternative, in which the Convention did not exist at all.
That the Refugee Convention is incapable of resolving refugee issues as they stand today, let alone into the future with accelerating climate change and environmental degradation, seems clear. As Goodwin-Gill claims, the persecution-oriented definition in the Refugee Convention continues to limit and confuse 101 . In this case, the question becomes twofold: firstly, might the Refugee Convention be updated to allow it to effectively help resolve modern refugee issues, or is a new document, new laws, a new system, needed?; and secondly, is either feasible in the current political climate?
In the six years since Goodwin-Gills claims, little has changed. Nor do imminent changes seem likely. It seems that, as he warned, the Convention, and particularly the UNHCR are destined to be judged a failure, and accountable, and not merely excused because it tried hard in difficult political circumstances 102
101 Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23, p.21 102 ibid, p.22