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

1. 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 LawSessional Instructor, Faculty of Law, University of Milano (Bicocca)Sessional Instructor, Graduate Faculty of Environmental Studies, Royal Roads University E-mail: lwestra@interlog.com Website: www.ecointegrity.net

2. Victimizing the Victims: 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.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.

3. 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.

4. The Legal Status of Internally Displaced Persons ...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.

5. Introduction to the Five Grounds to Refugee Status to Establish Discrimination 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.

6. State Protection and State Responsibility to Ecological Refugees 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.

7. Current Roots of the Problem 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, (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’”.

8. ATCA’s Jurisprudence “Three Waves of Litigation” 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.

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

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

11. Race Discrimination: Revisited 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”.

12. Religious Beliefs: Holy Sites for Indigenous and Local Communities • 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.

13. The Weakness of the UN and Crimes Against Humanity 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.

14. Genocide or 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.

15. Environmental Problems and Health Impacts: A Missing Link 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.

16. The Magnitude of the Problem 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”.

17. Understanding the Issues: The Aetiology of Crimes Against Humanity 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.

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

19. Towards a Comprehensive Approach: Ecological Integrity for Global Governance 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.