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...Aftermath Armed Conflicts D. Environmentally-Induced Migration Controversy III. THE MAELSTROM STEMMING FROM THE NOTION OF "ENVIRONMENTAL REFUGEE" A. The Blunt, Well-Founded Fear of Persecution of Environmentally-Displaced Persons B. The Blurred Grounds of the Persecution Suffered by Environmentally-Displaced Persons C. The Problematic Dichotomy Among Environmentally-Displaced Persons D. Conclusions Concerning the Environmental Refugee IV. PROPOSITIONS AND ARGUMENTS IN RELATION TO THE PROTECTION OF ENVIRONMENTALLY-DISPLACED PERSONS A. The Conundrums of Revising the Traditional Refugee Definition to Encompass Environmentally-Displaced Persons B. Proposed Definition of "Environmental Refugee" at the International Level C. The Limits of Applying the Complementary Forms of International Protection to Environmentally-Displaced Persons 1. Complementary Protection in Europe.. The Forgotten Category of Environmentally-Displaced Persons a. Eligibility Criteria for International Protection Under the Directive on Temporary Protection b. Eligibility Criteria for International Protection Under the Directive on Subsidiary Protection c. Conclusion Concerning Complementary Protection in Europe 2. Complementary Protection in the United States: The Uncertain Protection of Environmentally-Displaced Persons D. Proposed International Regime of Complementary Protection Specifically Dealing with Environmentally-Displaced Persons V. CONCLUSION
I. INTRODUCTION
The United Nations (UN) defines "disaster" as "a serious disruption of the functioning of a society, causing widespread human, material, or environmental losses which exceed the ability of affected society to [cope] using only its own resources." (2) Numerous environmental disasters have indiscriminately touched all continents with devastating effects. (3) Various political, economic, or social factors can cause environmental disasters, which are far-reaching and inextricably linked to growth and development. (4) However, history has repeatedly shown that the environment itself can also be a source of disaster.
Over the past forty years, scientists have approached the issue of environmental degradation from different perspectives and with different rules and procedures. (5) The body of international environmental law sets forth a variety of norms aimed at preventing, reducing, and remedying the multiple aspects of environmental degradation, ad environmental degradation ultimately lead to environmental disasters. In contrast, humanitarian law and human rights law consider environmental degradation from an anthropocentric point of view, addressing the adverse effects of environmental degradation on human beings. While migration to escape an environment temporarily or permanently disrupted is a critical aspect of the issue, the current international legal regime disregards the correlation between environmental degradation and human migration.
The importance of the issue of environmentally-induced migration has been highlighted by scientists, which provoked much debate among legal academics. The seminal event in the development of a comprehensive study on the problems related to environmentally-induced migration was a 1985 United Nations Environment Programme paper on environmental refugees: (6) The expression "environmental refugees," though widely used for the past twenty years, is mistakenly applied. "In everyday speech, the word 'refugee' is used to describe a person who is forced to flee his or her home for any reason for which the individual is not responsible, be it persecution, public disorder, civil war, famine, earthquake or environmental degradation." (7) However, the UN legal definition of a refugee sets forth several specified criteria a person must meet to receive refugee protection, (8)
Some authors affirm that the Convention Relating to the Status of Refugees (Convention) was neither drafted with environmentally-displaced persons in mind, nor can be reasonably interpreted to include those persons. (9) The use of the term "environmental refugees" is therefore controversial and, even though it seems to provide an impetus for further discussion on the issue, it does not adequately address the dilemma encountered in protecting environmentally displaced individuals.
The World Conference on Human Rights, held in Vienna in June 1993, acknowledged the substantial problem of large movements of population due to environmental degradation, as well as the actual inadequacy of international refugee law to tackle the problem. (10) Yet the Vienna Declaration and Programme of Action issued at the conference does not offer any guidance or strategy to deal with the complexity of these population movements. (11) Nor do the symposiums later convened under the auspices of the UN, in order to foster discussion on both the issue of environmentally-induced population displacements and environmental impacts resulting from mass migrations, address the problem.
This Article focuses on the extent to which international law and practice provide the environmentally displaced with physical protection from serious human rights violations. Accordingly, it endeavours to better understand the phenomenon of environmentally-induced migration in order to foster constructive discussion on the issue.
First, the Article illustrates the correlation between environmental degradation and migration, providing examples of environmentally-induced population movements. The Article further highlights the importance of the issue, reasserting scientists' concerns over an aggravation of the problem in the near future. This is followed by a discussion of the legal means of protection available in international law. Finally, discussing the maelstrom stemming from the notion of "environmental refugees," this Article analyzes various propositions advanced by legal scholars to foster protection for those environmentally displaced who do not fit neatly within the refugee definition, but deserve international protection nonetheless.
II. THE STRIKING EVIDENCE THAT ENVIRONMENTAL CHANGE CAUSES LARGE HUMAN MIGRATIONS
Of the various forms of environmental degradation, some particular incidents are of major concern as they make natural habitats unliveable either temporarily or permanently and accordingly trigger large human migrations. These environmental disasters are traditionally classified into four categories: (12) 1) long-term environmental degradation, including global warming, deforestation, land erosion, salinity, siltation, waterlogging, and desertification, (13) 2) sudden natural environmental disruptions, including earthquakes, droughts, floods, hurricanes, monsoons, tidal waves, tornadoes, and volcanic eruptions, (14) 3) accidents, including both industrial and chemical disasters, (15) and 4) armed conflicts. (16)
Features of environmental disasters are extensively described in both scientific and legal literature. This Article reviews several well-known examples of environmentally-induced migration for the purpose of discussing the consequences in terms of human rights violations. These examples illustrate the magnitude of the phenomenon and highlight the subsequent need to provide protection to those who are environmentally displaced. There is an inextricable correlation between long-term environmental degradation and sudden natural environmental disruptions, the former exacerbating the pace as well as the adverse effects of the latter. (17) Thus, these forms of environmental disasters are usually surveyed concurrently in the literature.
A. Long-Term Environmental Degradation and Sudden Natural Environmental Disruptions
The link between long-term environmental degradation and the subsequent movement of population is best illustrated by the desertification of the African Sahel. (18) Norman Myers asserts that desertification threatens at least 900 million people around the world and that severe desertification threatens 135 million of them, half of that 135 million being found in Sahel. (19) The African Sahel ks a belt of semi-arid land running across the southern boundary of the Sahara desert, from Mauritania to Somalia. (20) The desertification in the African Sahel may be explained by the continual population growth in the region, which increased undue exploitation of environmental resources until it surpassed thresholds of irreversible depletion and was no longer able to retain adequate moisture and rainwater. (21)
Either as a result of these manmade conditions or otherwise caused environmental impairments, the Sahel is affected by recurrent drought. During the periods of drought, "the nomadic farmers of the Sahel moved further and further southward, away from the desert, in search of less sparse areas, stripping the land bare as they went." (22) Similarly, subsistence farmers were forced to move onto fragile land, further overworking the soil and exacerbating the problem. (23) Eventually, this combination of land degradation and drought resulted in the rapid southward expansion of the Sahara (24) so that today the African Sahel is experiencing desertification at an alarming pace. (25) Jessica Cooper observes that the environmental conditions of the Sahel have become intolerable for its human inhabitants--land degradation has become so significant and widespread that, together with droughts, it ks the prime reason why millions of sub-Saharan people have faced an almost constant threat of famine and starvation since 1985. (26)
For these reasons, hundreds of thousands of Sahel Africans have fled in search of an environment that can sustain them. Jessica Cooper reports that the Ivory Coast absorbed 1.4 million Sahelian refugees during the first drought that touched the Sahel, between 1968 and 1973. (27) "During the 1980's [sic] drought, twenty percent of Mauritania's population, or 400,000 people, and seventeen percent of Niger's population, or almost 1.5 million people, became environmental refugees. It is estimated that ten million people in the Sahel were forced off their land in that decade." (28) Thus it is argued that the "Sahel has generated some of the largest numbers of environmental refugees in proportion to its total population." (29)
Looming behind examinations of individual localities such as the Sahel is the potential for displacement due to global warming. (30) For the past fifty years, scientists have observed and warned the international community of a modification in the composition of the Earth's atmosphere fostering a rise of temperature. (31) The phenomenon, known as global warming or the greenhouse effect, is the consequence of human activities, in particular, large scale burning of fossil fuels and destruction of forests. (32) This has resulted in the release of excessive amounts of carbon dioxide and other gases into the air. (33) The scientists predict that average global temperatures will rise between three and eight degrees Fahrenheit over the next sixty years, and have observed that the Earth has not experienced such a change in climate for the past 10,000 years. (34)
The consequences of global warming on human migration are distressing since areas particularly vulnerable to natural disasters will face an increase in the occurrence and severity of sudden natural environmental disruption. (35) However, the phenomenon that may trigger the most important number of migrants is the rise in sea level. (36) Considering the fact that one-third of the world's current population lives within sixty kilometers of a coastline and that the global population is increasing, the rise in sea level will have devastating implications. (37) Jessica Cooper illustrates the extent of the problem with the example of countries such as Egypt, India, Bangladesh, and China "where large populations reside on low-lying deltas [such that] a three foot rise in sea level could turn hundreds of millions of people into environmental refugees." (38) "Island nations in the Caribbean, the Mediterranean, and the Pacific are equally at risk. With a rise in sea level, inhabitants of these islands could find themselves entirely inundated, resulting in an additional twenty-five million people seeking refuge." (39) Norman Myers posits that, as a consequence, fifty million people could be forced to migrate within the next fifty years. (40)
Recently, the international community has been particularly concerned about the fate of the inhabitants of Tuvalu Island, an island nation located in the Pacific Ocean halfway between Hawaii and Australia, threatened by sea level rise. (41) Realizing that "the people of Tuvalu will soon have to follow their island to a salty demise or move to higher ground," the Prime Minister has requested environmental refugee status for its citizens from both Australia and New Zealand. (42) New Zealand has responded to the plea by allowing seventy-five Tuvaluans to relocate annually to their country, but Australia has made no such offer. (43) With New Zealand's allowance of seventy-five Tuvaluans a year, it would theoretically take 140 years to relocate the Tuvalu population. Scientists hypothesize, however, that the island will be completely submerged in ninety years time. (44)
B. Accidents, Including Industrial and Chemical Disasters
Industrial and chemical disasters result from activities that lead to pollution, spillage of hazardous materials, explosions, and fires. They may occur because of poor construction and management planning, or from neglect of safety procedures. (45) There are several examples of industrial and chemical accidents causing large numbers of persons to be displaced. In 1984, a chemical plant located in Bhopal, India, owned by Union Carbide, (46) released chemicals into the city, displacing 200,000 people. (47) A similar accident occurred in Seveso, Italy, where a small chemical manufacturing facility released dioxin, the same chemical found in Agent Orange, (48) and displaced 800 people. (49) In 1976, a partial meltdown of a nuclear reactor at Three Mile Island, located in Pennsylvania, caused the temporary displacement of over 100,000 families (50) and the permanent displacement of 10,000 individuals. (51) However, the nuclear accident at Chernobyl is the most infamous example. (52) Overall, up to 100,000 people were displaced, a thirty-mile zone around Chernobyl remains uninhabited, and "radiation contamination has a half-life of 25,000 years, so the area will be effectively contaminated forever." (53) The geographic scope of such accidents is nonetheless limited, so that, in general, displaced persons may seek refuge within the borders of the country in which the accident occurred.
C. The Aftermath of Armed Conflicts
Certainly the issue of environmental degradation in times of armed conflict is contextual and less generalized than the "regular and sustained assault on the environment that is an endemic part of any industrial society." (54) Yet, recent materials describe the environmental impacts of armed conflicts (55) generally fit them into one of three categories: 1) destruction of the environment for deliberate military purposes, 2) destruction of the environment for economic purposes (often involving natural resources), or 3) collateral damage. (56)
Tara Weinstein illustrates that history abounds with examples, widespread throughout Asia, Europe, and North America, of purposeful modification of the environment as a tool of war. (57) In 512 B.C., the Scythians practiced a scorched-earth policy against the Persians. (58) She further enumerates the
salting of the soils of Carthage; the scorching of Confederate land in the U.S. civil war; the blowing-up of the Huayuankow Dam of the Yellow River by the Chinese, which flooded millions of acres of crops and soil; the destruction of Verdun by poison gas in World War I; and the burning of Norwegian lands during World War II. (59)
More recently, the United States used Agent Orange to defoliate the jungles of Vietnam. (60) "The old Iraqi government ignited oil fields in Kuwait during the 1990-1991 Gulf War" and destroyed the marshes in southern Iraq following the 1991 Shi'a rebellion." (61) During the 1999 Kosovo war, the North Atlantic Treaty Organization (NATO) bombings allegedly damaged the environment. (62) This list is likely to expand if the international community does not take meaningful steps to address the issue of environmental destruction in times of armed conflict.
Destruction of the environment for economic purposes (often involving natural resources) has also been a problem. Several times in the last few years, the UN Security Council has alleged and condemned the plunder of Democratic Republic of Congo's natural resources, emphasizing the concerns of the international community that the illegal exploitation of natural resources is fuelling the conflict. (63)
Collateral damage has also occurred. For instance, Robert Augst reports that the coalition used cluster bombs in the recent war in Afghanistan. Some of these bombs did not explode on impact and scattered. Since they are sometimes undetectable to the population, they can impact the use of farmland and livestock, "impede access to shelter and water, and delay rehabilitation of essential infrastructure." (64) Sadly, Cambodia is similarly infamous for the large and widespread amount of landmines left after withdrawal of its armed forces, and the subsequent consequences on everyday conditions of life as illustrated above. (65) Importantly, as a result, there are a large number of injured people. More recently, as a consequence of the Rwandan war, national parks were left polluted with landmines and bodies, "endangered species such as the mountain gorillas [were] poached; agricultural lands rendered barren in order to coerce the migration of persecuted peoples; and systemic resettlement exhausted moderate lands, specifically in Eastern Congo, of their agricultural capacities." (66)
As a matter of course, therefore, environmental degradation in times of armed conflict irremediably fosters large movements of population. As a result, Norman Myers observes that "[a]lthough it is difficult to calculate the exact number of people for whom environmental degradation is a primary cause of forced migration, it assuredly is a factor for the majority of non-traditional refugee-seekers." (67) Thus, while there are presently 22 million traditional refugees, there are presumably an additional 25 million environmental refugees. (68) Moreover, it is predicted that the number of persons who will flee environmental degradation in the near future is going to increase at a rapid pace, so that the issue of environmental refugees promises to rank as "one of the foremost human crises of our times." (69)
D. Environmentally-Induced Migration Controversy
Some authors challenge the factual evidence showing that environmental degradation causes large human migrations. Principally, Richard Black questions the sources and methods providing the statistical number of environmentally-induced migrants. (70) He disputes the argument that the flow of migration has increased due to the impairment of the environment, stating that the phenomenon is not unique to modern times, nor should it be a cause for concern. (71) Moreover, he affirms that the causes of forced migration are so complex and multiple that they cannot be circumscribed solely to environmental reasons. (72) For this reason some scholars opine that the key problem is perhaps not environmental change itself, but the ability of different communities and countries to cope with it. This, in turn, is closely linked to problems of underdevelopment and North-South relations. (73)
Authors may rightly highlight the complexity of migration phenomena and challenge the exact number of environmentally-induced migrants. Large groups of persons are nonetheless in a vulnerable situation and deserve protection. Moreover, the current international legal regime does not address specifically the issue of environmentally-displaced persons. Indeed, even though debate on the issue emerged twenty years ago when Essam E1-Hinnawi referred to the term "environmental refugees," (74) legal academics are still in search of an appropriate means of protection.
The next Part focuses on the argument to reinterpret or revise the refugee definition to include environmentally-displaced persons. Reference to the term "environmental refugees" has, however, been the object of significant discussions and remains controversial.
III. THE MAELSTROM STEMMING FROM THE NOTION OF "ENVIRONMENTAL REFUGEE"
According to the Refugee Convention,
the term "refugee" shall apply to any person 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. (75)
This Article discusses each of the elements of the refugee definition with respect to environmentally-displaced persons. An analysis of the present legal definition of "refugee" highlights the legal hurdles presented when attempting to adapt the situation of environmentally-displaced persons to fit the refugee definition.
A. The Blunt, Well-Founded Fear of Persecution of Environmentally-Displaced Persons
Most authors concur that in the vast majority of situations neither persecution nor concerted state action is involved, so that "unlike victims of persecution, those fleeing environmental disaster can, in most cases, turn to their own government for help and support." (76) The Office of the United Nations High Commissioner on Refugees (UNHCR) makes this distinction by stating that:
[r]efugees are distinguished by the fact that they lack the protection of their state and therefore look to the international community to provide them with security. Environmentally-displaced people, on the other hand,...
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