Defining Persecution: The Case of Climate Refugees and the 1951 Convention
Graduate Assistant, IMS
Migration has historically been an adaptive mechanism to deteriorating environmental conditions. Given the increasing rates of climate change, it is projected that environmental migration will increase as well. According to the 1990 First Assessment Report of the Intergovernmental Panel on Climate Change (IPCC), the greatest impact of climate change might be on human migration. One hundred and fifty (150) million people could be displaced by climate change related phenomena, such as desertification, by 2050.
The International Organization for Migration (IOM) has developed a broad and comprehensive working definition for environment-induced migrants. According to this definition, environmental migrants are “persons or groups of persons who, for compelling reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their country or abroad.” Utilizing the term “climate refugee” or “environmental refugee” has been a topic of contention amongst international organizations and scholars . People who migrate, even when ‘forced’, due to environmental factors do not fall within the scope of the legal definition of refugee enshrined in the 1951 Geneva Convention and its 1967 Protocol. This article will discuss the reasons behind this exclusion as well as a possible way around it.
Historical Context of the Convention
Given the post-cold war context in which the Convention was drafted, the definition of the ‘refugee’ has been criticized for being narrow, one-dimensional, and Western-centric. This construction, which is not politically neutral, is reflected in the Convention’s emphasis and privileging of a ‘fear of persecution’ based on “well-defined political grounds with dimensions of race, religion, nationality, social group, and political opinion”. Influenced by the political era in which it was drafted, the Convention was built to provide international protection for distressed persons who were fleeing their countries due to identifiable political persecution which was “essentially derived from the threats of Eastern State authorities”. As such, a limited, restrictive, and political conception of persecution was constructed, one which privileges the individual’s civil and political rights rather than their economic and social rights.
Environmentally displaced persons, who flee because of several reasons and violations to their human rights, do not fit into this political construction of persecution since the Convention maintains a very specific and narrow depiction of the refugee. Furthermore, during the Convention’s drafting in the early 1950s, the international community was not yet aware of planetary degradation and its human consequences. As such, displacement due to environmental degradation or hazards was not accounted for. Awareness concerning the consequences of global environmental changes (such as climate change and loss of biodiversity) began later on in the 1970s and accelerated in the 1990s due to the increasing availability of information on the topics.
An Issue of ‘Persecution’
International refugee law adopts an individual approach to the causes of exile whereby situations of generalized violence (such as a civil war or natural disaster) do not qualify as persecution. Hence, survivors of such situations do not qualify as refugees according to the Convention. As Cournil states, “the individual nature of refugee status recognition puts aside the general and diffuse threats of persecution, and only retains the fear of personal persecution”. Hence, widespread environmental degradation is in itself insufficient to demonstrate the existence of ‘a well-founded fear’ of persecution. Furthermore, the concept of persecution framed in the Convention requires the existence of an ‘agent of persecution’ “which is difficult to envisage when it is the ‘environment’ that is causing the displacement”. As such, even if sudden disasters or gradual environmental changes affect the living conditions of fleeing populations, they are not qualified as persecution per se.
Moreover, the Convention is confined to the situation of individuals who cross an international border (moving from one state to another). As Cournil puts it, the Convention “does not apply to purely domestic circumstances of forced migration”. Empirical studies have shown that most environmental displacement is internal: “Most people displaced by weather-related catastrophes and environmental changes, even those that unfold gradually, remain in their country of origin or near the border”. Hence, environmentally displaced individuals largely fall outside the scope of the Geneva Convention. Remaining in their state of origin, they fall under the responsibility of their state. As such, Cournil claims that “international protection is not necessary and not justified”. Nevertheless, in 1998, the Human Rights Council adopted The Guiding Principles on Internal Displacement which is a soft law document that codifies existing international law and fosters more effective protection for internally-displaced persons.
Environmentally displaced persons do not fall within the scope of the Geneva Convention for several reasons. The first reason pertains to the historical context with in which the Convention was drafted and the narrow political definition. The second reason relates to the difficulty of establishing the personal nature of the environmental threat as well as qualifying it as an agent of persecution. Last but not least, the third reason for this exclusion pertains to the structural limitation of the Geneva Convention itself, which requires that individuals are outside their country of origin. The chances for amending the Convention to include environmentally displaced people are slim. Many international actors and legal scholars fear that such an amendment might undermine the current protection regime for already defined refugees. Cournil informs us that “[…] the UNHCR has clearly positioned itself against such a revision of the Geneva Convention because of fears that re-opening the Convention to negotiations in current political circumstances could lead to narrowing down rather than expanding the protection regime”.
Burson claims that there is a possible avenue for environmentally displaced persons to satisfy the Convention’s definition. Burson explains that environmental degradation does not occur in a social vacuum, but is the result of certain economic and social policy choices. When these policies occur in a discriminatory nature, it can in principle result in environmentally displaced persons who meet the Convention’s definition. As Burson puts it, “[…] historical policy choices, particularly development and infrastructure related policy choices, may evidence a pattern of official discrimination- a relevant consideration for the Convention inquiry”.
While governments have alerted themselves that environmental migration constitutes a security threat, the topic of environmental migration and displacement is an important concern for the human security approach. While it is important to acknowledge and act upon the vulnerabilities environmentally displaced populations are exposed to, it is equally important not to forget the protections needed for immobile populations who are trapped in environmentally hostile spaces.