The Limitations of the Present International Instruments for the Protection of Refugees

Chapter 1
The Limitations of the Present International Instruments for the Protection of Refugees

Laura Westra

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 (Stockholm Declaration of the United Nations Conference for the Human Environment 1972; El Hinnawi 1985); he adds, in his discussion, the concept of ‘Ecodevelopment’ coined in this document. 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 (El Hinnawi 1985: 4).

By adding, ‘In a broad sense, all displaced people can be described as environmental refugees’, El Hinnawi places environmental refugees in a category that he views as primary or foundational, rather than simply viewing them as ‘displaced peoples’ instead. These are not accepted as legitimate refuge seekers, according to the 1951 Convention on Refugees (CSR), but rather as IDPs, internally displaced persons, not qualified to claim refugee status.

El Hinnawi’s argument is both correct and appropriate. In turn, he defines ‘environmental disruption’ as:

… any physical, chemical and/or biological changes in the ecosystem (or the source base) that render it, temporarily or permanently unsuitable to support human life (El Hinnawi 1985: 4).

This is the aspect of the issues confronting environmental refugees that is at the heart of this work: when the resource base, the integrity of the lands where a community resides, is destroyed, indeed it can no longer support human life. That has been the argument proposed by my work since 1994 (Westra 1997; Westra 1998; Pimentel, Westra and Noss 2000; Soskolne, Westra et al. 2007; Westra 2006; Westra 2007). If ecological integrity is central to human health and survival, as well as to the normal functioning of ecosystems, then its absence represents an attack on both health and survival, as well as ecosystem function.

We are all affected in various measure, as I have argued, but the poor and those who live on the land are indeed the most vulnerable. Whether the flight that ensues is temporary or permanent, for most of these refugees, it is indeed the dangerous circumstances in which they find themselves that defines their status, even when the circumstances are the result of conflicts or other non-environmental situations. But their numbers are often great, and their relocation poses immense problems even in their country of origin. Large migrations, an increasingly common situation today, may well do great damage to the area to which they relocate (El Hinnawi 1985: 5).

The magnitude of the problem cannot be overstated. A Christian Aid Report predicts that, ‘given current trends 1 billion people will be forced from their homes between now and 2050’ (Christian Aid Report 2007), adding:

Stranded within their countries and largely ignored by the media, they are the world’s forgotten people. The numbered include,

• 50 million people displaced by conflict and extreme human rights abuse. This assumes a rate of displacement of roughly 1 million people a year, which is conservative;

• 50 million people displaced by natural disasters. Again this conservatively assumes that around 1 million people will be displaced this way every year;

• 645 million people displaced by development projects such as dams and mines (at the current rate of 15 million a year);

• 250 million people permanently displaced by climate change related phenomena, such as floods, droughts, famines and hurricanes;

• 5 million people will flee their own countries and will be accepted as refugees (Christian Aid Report 2007: 6).

Already in 1994, the ‘Almeria Statement on Desertification and Migration’ estimated that ‘the number of migrants in the world, already at very high levels, nonetheless continues to increase by about 3 million each year’ (International Symposium on Desertification and Migration 1994). Norman Myers alerted the world to this emerging crisis already in 1993 (Myers 1993), and in 2005 he ‘revised his estimate’ (McAdam 2007: 1), suggesting up to 200 million as a possible refugee number (Myers 2005).

However, Sir Nicholas Stern viewed that figure as ‘conservative’ and Myers has since once again revised his estimate (Stern 2007). The daunting numbers of ecological refugees, that is, the IDPs that comprise climate and other environmental refugees, as well as those displaced by economic oppression and toxic exposures engendered by ‘development’ and other industrial projects, are grave enough to warrant a thorough re-examination and discussion of present international law.

The main problem with these large migrations lies in the definition of refugee with its strict limits, according to the Convention Relating to the Status of Refugees (adopted 28 July 1951; into force 22 April 1954):

Article 1. Definition of the Term ‘Refugee’

The term ‘refugee shall apply to any person who:

(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 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.

The well-founded fear that is the basis of any refugee’s claim appears to be a single individual’s sentiment, although, as we shall argue below, it may be viewed from several perspectives, even to apply to whole affected groups, and the Jewish people of Nazi Germany were precisely such a group. Thus, the original intent of these definitions is directed at the plight of single individuals, rather than large migrating groups. But, as El Hinnawi argues, environmental disasters, whether wholly natural (such as earthquakes, droughts and tropical cyclones), partly natural, that is such that human activities play a significant role in the severity of resulting disasters (such as floods, tsunamis, hurricanes of particular strength), or even those where human activities play a major role, such as melting ice and permafrost in the Artic, raising sea levels elsewhere, are such that invariably large numbers are affected.

All of these disasters affect disproportionately the poorest people in the world, as they have no infrastructure or social services to protect them, or to mitigate the effects of environmental disasters (Pogge 2008). In addition, land degradation and desertification also render various regions in the South uninhabitable, as does deforestation, and such phenomena generate a mass exodus from the affected region (Goodland 2008: 219–44). Hence it is easy to understand why other countries and their governments, beyond the areas where the disasters occur, are not eager to open their doors, but content themselves with sending aid, at best. This ‘aid’ is often inappropriate, insufficient and hard to distribute to those most at risk (El Hinnawi 1985: 23–30).

Often environmental refugees simply attempt to migrate to a different area in their own country, perhaps to the cities. But these are both unprepared and unwilling to receive them and to support their many needs:

The End of the Line

When environmental refugees migrate to urban areas, they expect a ‘rosy’ quality of life. But soon they find themselves in slums and squatter settlements. In such areas they are usually deprived of access to the basic facilities of drinking water and waste disposal. They are frequently forced to use open water for washing, cleaning and the disposal of waste in unhygienic ways; to break open municipal water mains; to use public places such as open ground to relieve themselves; and to live in makeshift shelters surrounded by accumulating domestic waste (El Hinnawi 1985: 31).

Equally unacceptable are the so-called ‘environmental disasters’ such as Bhopal, Seveso, 3-Mile Island or Chernobyl (Westra 2007: chs 1–2; El Hinnawi 1985: 35–6). The industrial operations we take for granted everywhere in developed countries and the developing world result in increasingly visible public health hazards that are not limited to the occasional spill, malfunction or other ‘accident’. In contrast, they render the conditions of life around their location hazardous for all, but impossible for those who live a traditional lifestyle on the land, as is the case particularly for isolated communities and Indigenous peoples everywhere (Westra 2007: chs 1–2).

Hence in this work we will analyse the impact of these realities exacerbated by globalization and climate change, as well as the proliferation of industrial chemicals. In this regard we will consider the CSR and other regulatory regimes regarding Internally Displaced Persons (IDPs), as well as other international instruments regarding human rights and humanitarian law. Our goal will be to discover whether it is possible to find a legal avenue to mitigate the suffering of these millions of people, starting with the special plight of Aboriginal peoples.

Internally Displaced Persons in International Law

UNDP, in collaboration with IOM, UNICEF and the World Bank, is preparing a handbook on integrating migration into national development strategies. On behalf of the European Commission with other United Nations agencies and IOM, UNDP is managing a programme on knowledge-sharing related to migration and development (UNGA 2008: 11).

The potentially hopeful presence of the International Organization for Migration (IOM) and Global Forum, devoted to the same issue, lose their relevance when one considers the main focus of the documents referred to: ‘development’ or, essentially, trade:

The IOM seeks to engage expatriate communities as partners for development, including through the transfer of knowledge and skills (UNGA 2008: 13).

Clearly, the drafters do not have in mind the starving millions of IDPs and refugees in Sub-Saharan Africa, their deep poverty and the burden of disease; nor do they consider that today’s large migrations are, for the most part, the result of trade and ‘development’, both pursued without any concern for sustainability (Soskolne, Westra et al. 2007) or the connections between environment, human rights and health (Gostin 2008).

The basic difference between ‘migration’ and ‘forced migrations’ is clearly recognized in the work of the Refugee Studies Centre at the University of Oxford, together with UNEP, as well researched and analysed in Issue 31 of Forced Migration Review (2008). Achim Steiner, the UN Under-Secretary General and Executive Director (UNEP), says,

Human migration, forced or otherwise will undoubtedly be one of the most significant consequences of environmental degradation and climate change in decades to come (Forced Migration Review 2008: 4).

Steiner acknowledges that ‘unsustainable human development’, together with the rising sea level and the ‘loss of coastal wetlands’, contributes significantly to the millions who will be fleeing by 2080. Rather than focusing on trade advantages, the challenges to human security policies are grave, and ‘environmental migrants’ are recognized now as a separate category, whose numbers have not been acknowledged in law yet, but they are constantly increasing because of ‘longer term environmental degradation’, which aggravates the situation created by the impact of sudden disasters:

Environmental migrants are understood to be those individuals, communities and societies who choose, or are forced to migrate as a result of damaging environmental and climatic factors (Morton, Bancour and Laczko 2008: 5).

Climate change impacts will follow three separate avenues: (1) ‘the effects of warming and drying’ will significantly disturb ecosystem services; (2) the increasing presence of catastrophic weather events such as floods or heavy precipitation, will ‘generate mass displacement’; and (3) ‘sea level rise’ will permanently destroy the traditional territories of millions (Morton, Bancour and Laczko 2008: 6). The ongoing development of all these concurrent events, demands ‘proactive intervention’ (Morton, Bancour and Laczko 2008: 6); it also requires the organizational and institutionalization of several areas of research, with a view to promote readiness for mitigation and assistance.1 These organizations do not have binding force to impose the conclusions they might reach about the necessity of aid and assistance to migrants, let alone the power to be truly ‘proactive’, in the sense of being able to proscribe the hazardous and negligent human activities that produce ‘overwhelming negative’ impacts on peoples and environments, and which, in turn, generate mass environmental and climate migrations.

To sum up, the primary responsibility for IDPs rests with their territorial state because of the principles of sovereignty and non-intervention. However, as Goodwin-Gill and McAdam add:

… the governing principles of sovereignty and non intervention stand potentially in opposition to often governing principles of international organization, including the commitment to human rights and to international cooperation in the resolution of humanitarian problems (Goodwin-Gill and McAdam 2007: 33).

The major problem is that ‘neither the UNHCR nor any other UN agency has any legal authority “to protect” persons within their own country’ (Goodwin-Gill and McAdam 2007: 34; UNGA 2005). Hence the protection of IDPs – although a ‘broad consensus’ exists in principle on the need to protect (Goodwin-Gill and McAdam 2007: 48) – remains unsolved, at least at the international level. The question on the ground remains almost exclusively regional and political, although for certain specific circumstances the internally displaced may be considered in international law, given the ongoing failures of states to provide protection:

In each case however, there is a clear gap between what may be called functional responsibilities and expectations, on the one hand, and the legal obligations of States, on the other hand (Goodwin-Gill and McAdam 2007: 47).

The presence of such ‘gaps’ does not appear to be purely an oversight, as states have consistently avoided the drafting of a new, binding convention that might solidify and render mandatory the rights of IDPs in relation of their state of origin. Since 1990, however, the legal concept of ‘complementary protection’, which has had a history dating back to the League of Nations (Marrus 2002), has emerged as the formal ‘refugee’ definition was found to be increasingly incomplete. Complementary protection was intended as a legal term to be distinguished from the protection ‘granted solely on humanitarian grounds’, based on humanitarian and human rights law (Goodwin-Gill and McAdam 2007: 286; Executive Committee, Standing Committee 2000: esp. paras 4 and 5). However neither human rights nor humanitarian law apply to all who may need protection: for instance the norms of humanitarian law are applicable only during an armed conflict, and other forms of ‘low-intensity conflict’ do not qualify (Phuong 2004: 48–9). Human rights law also needs clarification as the protection of life is certainly present within it, as are ‘free movement and access to international assistance’, as well as ‘the right not to be arbitrarily displaced’ (Phuong 2004: 51; Stavropoulos 1994: 689).

In addition, the right not to be arbitrarily displaced is not explicitly formulated in any human rights instrument, except the ILO Convention No. 169, but that document refers exclusively to Indigenous and tribal peoples. The Universal Declaration of Human Rights (UDHR) includes implicitly applicable language, and the Human Rights Committee in 1999 stated,

… the freedom to choose one’s residence (Article 12(1) of the ICCPR) includes protection against all forms of forced internal displacement (Human Rights Committee ‘Freedom of Movement’ 1999; Phuong 2004: 51).

The only instrument that defines specifically the rights of IDPs and states and others’ obligations is the Guiding Principles in Internal Displacement (UN GPID 1998), but these Principles do not represent a binding obligation, and most of the other international instruments from which the protection of IDPs might be inferred include both ‘ratification gaps’ and ‘consensus gaps’ (Phuong 2004: 49–50). Hence we can conclude that, at this time, no binding instrument exists for the protection of all IDPs, whereas perhaps Indigenous peoples may fare slightly better.

Nevertheless the problem of IDP protection remains a highly significant one, not only because of the presence of climate change and the pressures of globalization that ensure ever increasing numbers of migrants who are presently unprotected, but also because the problem it represents reflects the culmination of the modern tension between sovereignty and human rights problems (Anghie 2006; Dacyl 1996: 136). For this reason, primarily, refugee law, that is the 1951 CSR, is not only a flawed instrument as such, as we shall see below it cannot properly protect even all its own defined ‘clients’, but is also less than useful for accommodating the growing new phenomenon, IDPs. This is true even though most of the categories of ‘persecution’ on which it is founded would lend themselves well to a possible extension to IDPs, at least in principle.

At any rate, solutions for both categories of affected persons, refugees and IDPs, would benefit more from the immediate adoption of preventative measures to protect them ‘at source’, that is long before the circumstances of their existence deteriorate to the point at which flight is the only option for survival.

Asylum Seekers and Fortified Borders

What we have come to call a globalized world harbours fundamental tensions between opening and barricading, fusion and partition, erasure and re-inscription. These tensions materialize as increasingly liberalized borders, on the one hand, and the devotion of unprecedented funds, energies, and technologies to border fortification on the other (Brown 2010: 7–8).

The previous two sections emphasized the specificity and the limits of the only international instrument designed for the protection of refugees; an instrument that is both dated in its intent, and totally out of touch with today’s situation, as we shall see below. But the first obstacle to a better understanding of the problem lies in the forms of globalization, and the seemingly irreconcilable tensions between national citizens, and the aspirations and interests of ‘aliens’, fostered and supported by global networks (Sassen 2006). The CSR is based on respect for migrants and openness not only to their plight, but also to their feelings, their subjective understanding of the situation from which they are escaping.

In contrast, while no new instruments have surfaced for the protection of asylum seekers, in contrast, walls and barriers are regularly being erected precisely to fortify many borders, globally. While the opening of the Berlin Wall has been celebrated, as well as the end of apartheid’s virtual walls in South Africa, new walls are being erected in many locations, and at least one new apartheid state is functioning and growing with impunity, behind the wall being erected through the West Bank by Israel (Sassen 2006: 8). The latter is being constructed with the support of the US, a country that has also erected its own wall on the Mexican border, using the same builders used by the Israelis (Sassen 2006: 137, n. 1).

South Africa itself has both walls and checkpoints at its borders with Zimbabwe; and India has put land mines in the space between their border and the territory of Kashmir (Brown 2010: 8). There are walls between Egypt and Gaza, China and North Korea, and several other walls in Israel enclose areas in Jerusalem and Bethlehem (Brown 2010: 19). Nor are states the only ones erecting walls: the same motive, generally speaking, that is, protecting the better off from the poor and dispossessed, also motivates the wealthy living in gated communities within the borders of the richer countries.

The connection between economics and migration has also been pointed out by Amartya Sen:

Increased migration pressure over the decades owes more to the dynamism of international capitalism than just the growing size of the population of third world countries (Sen 1994: 62–71).

As we consider the activities within states themselves, the fortified borders ‘without’, are not intended to stop ‘invading armies, or even [act] as shields against weapons launched in interstate wars’ (Brown 2010: 21). In contrast, they are intended as barriers to groups or movements that such states perceive as threatening in various ways.

The walls represent the clearest, most obvious signs of ‘border imperialism’ (Walia 2013). Walia describes ‘border imperialism’ as characterized by four main aspect: (1) the concurrent ‘securitization’ of borders, against migrants, fleeing from ‘impoverished and colonized communities’; (2) the ongoing ‘criminalization of migration’; (3) the racist approach to citizenship against the presence of aliens; and (4) the concomitant exploitation of migrant labour, on the part of states (Walia 2013: 5). These categories should be remembered as we confront the problem of refugees in all its multiple aspects, in these pages.

It is paradoxical to note that the weak and ‘denationalized states’ of today (Sassen 1996: xii) still concentrate their power and control at their borders, although they have lost most of their unique strength, their power to elicit loyalty, thus the capacity to truly represent their citizens (Sassen 2006), as their original power has even been replaced by the controlling corporate legal persons that have largely replaced most of the normally expected state functions (Westra 2013).

The starting point of a better understanding of the increasing problem of refugees lies in a better understanding of the state’s actions. Wendy Brown argues that the ‘absolute’ power of sovereignty is in direct conflict with democracy, or the ‘rule of the people’, because it includes the ‘prerogative power’ that can ‘suspend or set aside legislative power (popular sovereignty)’ (Brown 2010: 50). This issue embodies the main paradoxical, self-contradictory characteristic of sovereignty, and the example of that abuse of power can be found easily today: Guantanamo, Abu-Ghraib, extraordinary rendition, Gaza Strip – all immediately evoke multiple crimes, clear illegalities on the part of democratic states.

Brown attempts to define and list the paradoxes of sovereignty and democracy, and some of these ‘meanings and operations’ are germane to the basic issues of our topic:

1. Sovereignty is both a name for absolute power and a name for political freedom.

2. Sovereignty generates order through subordination and freedom through autonomy.

3. Sovereignty has no internal essence, but rather is completely dependent and relational, even as it stands for autonomy, self-presence and self-sufficiency.

4. Sovereignty produces both internal hierarchy (sovereignty is always sovereignty over something) and external anarchy (by definition, there can be nothing governing a sovereign entity ….

5. Sovereignty is both a sign of the rule of law and supervenes the law. Or sovereignty is both the source of law and above the law, the origin of juridicism and what resides outside it. It is all law and no law. Its every utterance is law, and it is lawless. (Brown 2010: 52–3)

Brown captures well the two-faced nature of sovereignty, the most important characteristic of which, according to Carl Schmitt, is its ‘unlimited authority’, which means the suspension of the entire existing order (Schmitt 1985: 12). In such situations, it is clear that ‘the state remains, whereas the law recedes’ (Schmitt 1985: 12). In fact, it is that ‘authority’, lawless as it is, that defines who is a friend and who is the enemy (Brown 2010: 54), thus laying the ground for the multiple recent revolts against authority starting with the Occupy movement in the West, and the Arab Spring in Africa (Westra 2014).

If we agree with Sassen’s contention that ‘citizenship is an incompletely theorized contract between the state and its subjects, based on property-owning citizens on one hand, and “disadvantaged subjects” such as workers which form a clear inequality formalized in the law’ (Sassen 2006: 277), then it is obvious that the law itself, pace Schmitt, loses its principled base, when it is too close to the interests and the dictates of the sovereign state. As well, the power that is founded on property within the state, has increasingly been transferred to the corporation, singly and collectively, that is to corporate associations such as NAFTA, the WTO or the nascent TPP.

It is these associations that have shown first, and eventually cemented, the weakness of the state, both in its internal and external relations. Internally, in relation to its own citizens, the state is no longer the symbol and essence of a cohesive whole, as the state’s constitution is no longer the final arbiter of citizens’ protection under national legal regimes. In regard to other states, aggregate corporate decisions now have the final word on issues that might have been decided by bilateral agreements.

For citizens, this series of events represents the ‘denationalization of citizenship’, as Sassen says:

The national state is one of the strategic, institutional locations for both the larger contextual changes pertaining to citizenship. Thus I argue that citizenship, even if situated in institutional settings that are ‘national’, is a possibly changed institution if the meaning of the national itself has changed (Sassen 2006: 280).

The reach of this change has not been fully defined yet. It is certain that the collective identity of today’s citizens is no longer circumscribed by what we still think of as our national affiliation. Our cultural background may well be strongly grounded in our history, which is often intimately connected with our national heritage. But it is undeniable that our increasing ties with groups outside our borders (Pogge 1992: 48–75; Sassen 2006: 287), appear to destroy the facile but incomplete identification between nationality and citizenship.

As Sassen acknowledges, speaking of citizenship:

While many of these distinctions deconstruct the category of citizenship and are helpful for formulating novel conceptions, they do not necessarily cease to be state-based (Sassen 2006: 287).