Struggling to classify environmentally induced mobilities? What if some of them already fit into the legal paradigm for refugees?
MICHELA CASTIGLIONE | 15 JUNE 2019
Art by Gipi
There are many obstacles that make it very difficult for someone fleeing disaster-related harm to be considered a refugee according to current international legislation. The Refugee Convention, the cornerstone of refugee law, requires an individual to be persecuted to qualify for protection. However, what happens when the ‘persecutor’ is not a human agent? In the dominant view, no matter how devastating the natural or climate disasters, a person fleeing them does not fall within the scope of the Refugee Convention. This assumption reflects the dominant hazard paradigm where indiscriminate events stem from the forces of nature.
But what if we admit that 'natural' disasters are, in many regards, induced by human beings? Consequently, when can a cross-border person in the aftermath of a disaster-related harm, ask for a 'surrogate protection' from another State, claiming to hold a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion? Posing some questions may help us scratch the surface of the legal refugee paradigm.
Do purely environmental migrations exist?
Despite several attempts in migration studies to isolate man-made disaster from natural ones (e.g., through the conceptualisation of terms such as 'climate-induced migrants' or 'environmentally displaced people'), it is beyond doubt that human activities exacerbate the impacts of environmental and natural hazards (e.g., climate change, land grabbing, and water grabbing). What triggers population movement is multi-causal and depends on a combination of the disaster-related harms, the vulnerability of affected people and the (in)action of the governments to deal with them.
Can 'natural' events constitute persecution?
The key element of persecution is commonly defined as the severe violation of human rights accompanied by a failure of the State to protect the victim. Considering its strong ties with human rights, the term 'persecution' faces the subsequent developments in international human rights law. Both the background analysis and the reference to the Universal Declaration of Human Rights in the Preamble to the Refugee Convention support the understanding that any severe human rights violation may constitute persecution and thus lead to the refugee status. Now, as recognised also in the International Covenant on Civil and Political Rights, environmental degradations, climate change, pollution, natural disasters constitute some of the most serious threats to the ability to enjoy a variety of rights such as the right to life with dignity.
Natural disasters can threaten life and lead to inhuman situations. However, in international law, a human right violation occurs only when the situation suffered is related to a specific human (in)activity. Undoubtedly, such a legal requirement narrows the cases where the Refugee Convention may apply. Nevertheless, close scrutiny of each claim and an in-depth understanding of why disasters happen and how different groups are affected by them can determine whether or not refugee status may be recognised. Over the years, courts all around the world (Europe, America, Africa) have consistently broadened States' obligations to protect human rights, requiring States not only to refrain from intentionally causing violation of human rights (negative obligation) but also to take appropriate steps to safeguard such rights of those within their jurisdiction (positive obligations). The scope of the positive obligations applies both in cases where the human implication is predominant (e.g. the ecological disaster in the Niger Delta) and where human rights are threatened by a natural disaster such as earthquakes and floods. However, positive obligations cannot impose on governments an impossible or disproportionate burden to predict or avoid disasters. The State's responsibility for human rights violations in such circumstances will depend on the origin of the threat, the extent to which the risk can be mitigated, and the imminence and identification of a natural danger or a recurring calamity affecting a distinct area.
Is the agent’s mindset assessment really needed?
Even an unintentional violation of human rights can lead to refugee status where the State is unable to secure a remedy to the victim or to undertake feasible measures to avoid such violations to take place in the future. Indeed, whereas the Rome Statute of the International Criminal Court defines persecution as an 'intentional and severe deprivation of fundamental rights', such a subjective element is not present in the Refugee Convention. While the Rome Statute deals with criminal liability, the intention approach has an impractical implementation in the Refugee Convention: if in the refugee status procedure the agent cannot testify, who can determine her mindset?
What the nexus clause is really about?
Yet, the mere existence of a governmental policy to harm specific individuals by either causing unsafe environmental conditions or by not taking feasible measures to ensure protection from hazard events does not lead refugee status. Rather, there is a need to establish that such harm is linked to race, religion, nationality, membership of a particular social group, or political opinion. Consequently, this triggers the question of whether the nexus clause 'for reasons of' address the question 'why does the persecutor wish to harm the victim (or withhold protection)?' or rather 'why is the victim at risk of being harmed?'
The infliction of harm on account of one of the five grounds is commonly present in refugee claims. However, the employment of the passive voice of 'being persecuted' places emphasis on the exposure to harm, suggesting that the causal connection required is between a convention ground and the victim’s predicament. In jurisdictions where the 'claimant’s predicament approach' applies, evidence of root causes of disaster or a pre-existing pattern of discrimination may lead to identifying why certain vulnerable groups are disproportionately exposed to disaster-related harm. In a recent paper, the UN High Commissioner for Refugees (UNHCR) supports this view. A person fleeing across borders from disasters, including drought or famine, is considered a refugee under UNHCR’s mandate and may be granted refugee protection if such disasters disproportionately affect particular groups.
The number of people fleeing disasters are likely to increase in the coming years, irrespective of physical borders. Current international law obligates States to provide protection only to those displaced by man-made events. This hazard paradigm depoliticises the cause of displacement, allowing governments to derogate their obligation to provide protection.
The time is ripe for policymakers and the international community to take the naturalness out of disasters and recognise their social and political causes. Only a real concrete change in this conceptual paradigm would be able to set an agenda to recognise an extensive interpretation of the Refugee Convention to cover those forcibly displaced in the context of disasters and climate change.
Michela Castiglione, after obtaining an MSc in Law, recently earned a Ph.D. in Constitutional Justice and Fundamental Rights from the University of Pisa with a thesis about the international legal protection for cross-border persons in the context of disaster-related harm. She is a trainee solicitor in migration and refugee law and a member of the Association for Juridical Studies on Immigration (ASGI). Apart from having volunteered and advocated for many grassroots associations, she interned for Save the Children in Romania and AITIMA NGO in Greece. She also managed a variety of projects with environmental migrants, high-skilled asylum seekers, and beneficiaries of international protection.