Wednesday, September 3, 2014

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Environmental Migrants in Africa: An International Legal Solution

There is a pressing need for an international legal mechanism for environmentally displaced people.
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The signing of the 1951 Refugee Convention. Picture by UNHCR.

Between the cracks of international law

As noted in a recent study by the International Institute for Environment and Development, migratory patterns are most commonly of a temporary nature. So long as homes and communities retain some ‘pull factors’ and do not become entirely unviable, migration tends to be internal. This form of migration is a means of diversifying sources of income, reducing dependence on a degraded and less productive ecosystem. However, if worst case climate change scenarios projected for the future are borne out, internal migration may no longer be a valid option for many vulnerable people. The troubling reality is that there is at present no contingency plan to deal with environmentally induced cross-border migration.

The term “climate refugee”, though frequently used by campaigners to convey the plight of displaced peoples and to highlight the pressing need to provide them with refuge, is something of a misnomer. The present definition of a refugee under international law, as enshrined in the UN 1951 Convention and 1967 Protocol Relating to the Status of Refugees, limits protection to those fleeing political persecution. The UN’s Guiding Principles on Internal Displacement represent another dead end. Though the Guiding Principles encompass those fleeing natural disasters within their ambit, they are by definition limited to those who have not crossed a border. Furthermore, these UN documents form ‘soft’ principles rather than mandatory norms of international law. Other human rights instruments such as the International Covenant for Economic and Social Rights are limited in their application by the need for the plaintiff to show causation; this remains an elusive task in light of current scientific evidence, and the fact that environmentally displaced people cannot identify a specific actor as the cause of their displacement.

Empowering the vulnerable?

There is a pressing need for a legal mechanism of protection for environmentally displaced persons. Climate change cuts deepest for those who carve a precarious existence from a close relationship with the environment. It is this fragility, characterised by an extreme lack of adaptive capacity, which demands a legal framework of empowerment. Law can in this context act as an ‘equaliser’, cancelling out a lack of financial, social and political capital with a concrete and realisable bundle of rights.

The differential impact of climate change raises difficult questions as to where environmentally displaced persons can seek new lives after their homes and ways of life have become untenable.  The UN Refugee Convention, born in the post-war era of mass displacement and political rupture, is an obvious place to start looking for answers. The Office of the UN High Commissioner for Refugees (UNHCR) has been at the forefront of efforts to provide a humanitarian solution for people uprooted by political conflict, helping more than 20 million forcibly displaced people worldwide. UNHCR has reiterated the sobering reality that displacement is not only a consequence of conflict and suffering, but also a cause. With 147 signatories to the Convention, UNHCR has established a framework of global coordination and played a key role in all the major refugee crises since its inception. Yet expanding the definition of a refugee to encompass environmental migrants, thereby triggering obligations of international law, remains both a politically and legally elusive task.

The legal barrier

As the tightly drafted UN Refugee Convention suggests, a legally viable definition of an environmental ‘refugee’ must have identifiable limits on its scope of application. The underlying difficulty here lies in demarcating environmental drivers of migration from socio-economic or political factors. The perception of climate change as a “threat multiplier which exacerbates existing trends, tensions and instability” precludes the disentanglement of environmental degradation as a cause of population displacement from other social, economic or political factors. Steve Lonergan of the University of Victoria notes that “the degradation of the environment is socially and spatially constructed; only through a structural understanding of the environment in the broader political and cultural context of a region or country can one begin to understand the 'role' it plays as a factor in population movement”. Forced migration is not usually just a product of an environmental push in the shape of gradual climate processes such as sea level rise or increased water scarcity. Except in situations of natural disasters, where people flee for their lives following a distinct climatic event, environmentally induced migration will most often entail some element of pull, whether environmental, social, economic or political or perhaps most likely, a combination thereof. There has to be hope of a better future elsewhere.

One response to this difficulty of definition would be to limit the application of international obligations to those who by reason of their direct dependence on the environment can no longer tenably eke out a living in their home country. This response would accept the presence of socio-economic and political considerations within the migration nexus in order to craft a legal life-raft for those most exposed to climate change. Such a definition would have to accept the arbitrariness of extending the remit of legal protection to farmers, fishers and herders whilst denying it to the traders, shopkeepers and teachers whose economic fates are inextricably linked to those directly dependent on the environment. It is possible to argue that helping some people is better than helping none - where none are worse off as a result of this help - though this notion of ‘Pareto efficiency’ is at base a minimal notion of economic efficiency which makes no claim to equality. This argument would see arbitrariness as an inevitable and ever-present feature of everyday life.

The political barrier

Turning to the pragmatic hurdles, we are forced to swallow the unpalatable truth that calls to accept a potentially huge responsibility for environmentally displaced migrants would almost certainly fall upon deaf ears. Proposals to open the gates of wealthy nations to floods of destitute migrants lack political selling power in a climate of widespread anti-immigration sentiment. Statesmen are loath to subscribe to open-ended obligations; but with projections of the numbers of environmentally displaced persons ranging from 70 million to 1 billion, uncertainty is the name of the game. Widening the refugee definition, unchanged since 1967, would create a very real danger of de-ratification, leading to a sharp decline in the level of protection continuing signatories could offer. The trend, as exemplified by recent proposals by the UK coalition government to return immigration to 1980s levels, is one of clamping down on immigration, rather than extending it.

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