President Maumoon Abdul Gayoom stood before the UN in 1992 at the Earth Summit, pleading on behalf of Maldives: “I stand before you as a representative of an endangered people. We are told that as a result of global warming and sea-level rise, my country, the Maldives, may sometime during the next century, disappear from the face of the Earth.”[1] Since President Gayoom first began speaking before the UN about the plight of his nation in 1987, claiming that their Small Island State (SIS) of approximately 250,000 Sunni Muslims will become the world’s first environmental refugees, increasing attention has been relished on the topic.[2]

The 1951 Convention Relating to the Status of Refugees was obviously drafted before the threat of climate change entered the radar of human consciousness and this is the crux of its inability to protect what has been predicted to be some 150 million environmental refugees by the year 2050.[3] In fact, it took the passage of the Protocol Relating to the Status of Refugees by the UN General Assembly in 1966 to extend the substantive application of the 1951 Convention to situations that occur(red) after 1951.[4] Conjunctively, the Convention and Protocol have defined a refugee as the following:

One who “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.”[5]

Central to this definition is the refugee’s fear of persecution – the keystone of protection and asylum under international law. As an environmental refugee, it is extremely difficult to prove persecution. There are many who argue that the intentional activities of certain climate change provoking actors, who are aware of the effects of their acts and knowingly continue to pursue them anyway, constitute a policy of persecution.[6] Unfortunately the Convention and Protocol and the UNHCR do not currently recognize this interpretation. Recently, in March 2008, the President of Maldives promoted a UN resolution (adopted by consensus in the General Assembly) to address in part this concern regarding the international status of environmental (and in particular climate change) refugees.[7]

Generally, there are two fates for climate change refugees – (1) internal displacement or (2) external displacement. It is well known that displaced persons that are contained within their nation’s borders are not protected under international law. The UN has attempted to put forth guidebooks and principles regarding the treatment of internally displaced persons,[8] but there is no legal obligation upon the international community to protect these peoples’ needs and human rights. As mentioned above, given the (unpersecuted) nature of environmental refugees’ displacement, there are no guarantees for their protection as externally displaced persons either. Instead, the UNHCR currently promotes bilateral or multilateral agreements between nations to provide asylum for refugees who are not legally granted a right to asylum under the Convention and Protocol. However, the protections that an environmental refugee may receive under such an agreement are uncertain.

It is also uncertain what may happen to environmental refugees whose sovereign territories have completely disappeared. As “Stateless” migrants, they also have no protection under international law and may even be deprived completely of a representative voice in fora of the international community (for example, UN membership is extended only to States). It is true that from time to time in the history of the United Nations, a State placard has been retired and laid to rest in the holy grave of former States as global politics shifted and evolved, but what does it mean when a seat falls empty and a placard disappears because of the action of other States, followed by their subsequent inaction to remedy harms caused?

Asylum, the typical band-aid offered by the international community to wounded refugee populations, fails as a long-term solution particularly for populations of peoples who will never have a territory or State to return to. It is widely documented that refugee camp conditions are oftentimes neither temporary nor dignified. Even if accepted into a host State (either by agreement or immigration) under acceptable conditions, they will be expected to assimilate into a new culture. This assimilation means that over no short period of time, there will be a cultural dilution (loss of languages, traditions and customary practices) of these island peoples and potentially absolute cultural extinction over time. Perhaps there is something to be said about the richness of a new shared culture that may develop, but it is also extremely probable that there will be a dominant culture that will largely engulf the other. If the international community is to assist in the protection and preservation of the cultural heritages of SIS, it must do more than merely grant sanctuary or refuge to the masses of future environmental/climate change refugees, it must work now to prevent and mitigate the effects of global climate change.

The problems of environmental refugees are further exacerbated because of their long-term nature. Tuvalu representatives have lately begun to consider the possibility of purchasing land in neighboring countries, “in case [they] become refugees to the impacts of climate change.”[9] This is a last-ditch option that requires a significant amount of fiscal capital on the part of a State. For a SIS like the Union of Comoros, whose national budget is 1/100th of the New York Police Department’s annual budget, this is highly unfeasible. Even if governments can afford to buy land abroad for all of their displaced persons, this will have impacts on various global dynamics. In many instances this will place additional stresses on social relations, land tenure issues and natural resources use; environmental security scholars have often cited the presence of environmental refugees who increase tensions over scarce natural resources as a major factor of human conflict.[10] Also, if governments are purchasing land for their constituents in foreign countries in blocks of terrain, we may begin to see the formation of ethnic enclaves with no real loyalties to their host government. This can lead to outright conflict as well as separatist communities attempting to secede from their host countries. The question then arises – what rights for self-determination do peoples who have been unwillingly displaced by anthropogenically caused climate change have? Unfortunately, an analysis of that question lies outside of the scope of this discussion; it is only necessary to note that the current framework for protection of refugees is severely deficient and ill-prepared for the timely and daunting problem of climate change refugees, who will likely form permanent migrant populations.

For the sake of international peace and security, it is imperative upon the international community to consider the plight and future of environmental refugees in the face of climate change. In the context of refugee protection, this means that environmental refugees must be given consideration under the UN Convention Relating to the Status of Refugees and its subsequent progeny. This can take the form of an additional Protocol Relating to the Status of Environmental Refugees that guarantees the fundamental and human rights of all environmental refugees, including populations displaced by climate change. Most importantly, however, we must, as an international community, take immediate and proactive action to mobilize resources and our imaginations in preventing the conditions that will require the invocation of an international convention just to protect the fundamental human rights of millions of people everywhere.

Footnote:

[1] Morning Edition Climate Connections: Solutions: Maldives Builds Barriers to Global Warming (NPR radio broadcast Jan. 28, 2008), available at http://www.npr.org/templates/story/story.php?storyId=18425626 (last visited Apr. 1, 2008).

[2] iAfrica.com, Maldives Leader Leaves for Earth Summit with Sinking Feeling, Aug. 29, 2002, http://iafrica.com/news/specialreport/wssd_focus/features/151807.htm.

[3] Molly Conisbee & Andrew Simms, Environmental Refugees: The Case for Recognition, at 24 (New Economics Foundation, 2008).

[4] United Nations High Commissioner for Refugees [U.N. HCR], Convention and Protocol Relating to the Status of Refugees, at 6 (August 2007).

[5] Convention relating to the Status of Refugees, art. I(A)(2), Jul. 28, 1951, U.N. Doc. A/1775.

[6] See Molly Conisbee & Andrew Simms, supra note 37.

[7] G.A. Res. 7, U.N. HRC, 7th Sess., U.N. Doc. A/HRC/7/L.21/Rev.1 (Mar. 26, 2008), available at http://ap.ohchr.org/documents/alldocs.aspx?doc_id=13920 (last visited Sept. 27, 2008).

[8] E.g. U.N. OCHA, Guiding Principles on Internal Displacement, U.N. Doc. E/CN.4/1998/53/Add.2 (June 2001). U.N. HCR, Handbook for the Protection of Internally Displaced Persons (Dec. 2007), available at http://www.unhcr.org/protect/PROTECTION/479498992.pdf (last visited Sept. 27, 2008).

[9] UNFCCC, Climate Change, Small Island Developing States, at 13 (January 2005).

[10] Thomas F. Homer-Dixon, Environmental Scarcities and Violent Conflict: Evidence from Cases, 19 Int’l Security 5, 6-7 (1994).

Bio: Elaine Hsiao is working on a J.D. with a specialization in International Environmental Law at Pace University School of Law. Her research has focused on transboundary conservation and management of natural resources for sustainable development and peace, as a result of her interest in integrating principles of social ecology, cooperative peace-building and subsidiarity in legal frameworks for environmental protection. She also has a strong interest in the cross-cutting issue of climate change and the role of law in addressing this global challenge. Elaine is currently working on a paper outlining potential cases for international environmental criminal prosecution based on the timely and urgent need to prevent impunity for environmental crimes that cause or aggravate climate change, which directly compromises the most fundamental human rights of millions of people worldwide, particularly in vulnerable populations of Small Island Developing States and Low Elevation Coastal Zones of developing or Least Developed Countries. It is out of this research and the author’s hope for greater recognition of climate change as a human rights issue that this brief article on environmental refugees was born.