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The Legacy of the Refugee Convention

How will the world handle a rising tide of environmental refugees?




The world in which we live today is an extremely different one to that in which the Refugee
Convention was formulated, andto the preceding era which laid the groundwork for its
genesis. How valuable is any document or law drafted under such different conditions?

This paper will argue that the Refugee Convention as it stands is outdated, almost to the point
of irrelevance, and yet the legacy of its genesis, and the political and ideological battles that
have been waged around it, continue to affect its interpretation and implementation. As
Goodwin-Gill claims, the Conventions persecution-oriented definition of a refugee
continues to limit and confuse not only at the international operations level, but also in
national asylum procedures
1
. The international community is at risk of failing to have
developed and maintained the necessary legal instruments to uphold fundamental
humanitarian values.

This paper will only briefly touch on the realpolitik question of whether a new system, or
complete reworking of the existing Refugee Convention, is politically feasible. It will instead
focus primarily on the single issue of environmental refugees, and how this issue illustrates
the insufficiency of the Refugee Convention for mitigating, let alone resolving, refugee issues
in the modern world. As UNHCR states, displacement generated by climate change and
natural disasters will test the capability of the international humanitarian system.
2




The genesis and evolution of the Refugee Convention
In the wake of World War II the international community was particularly conscious of the
potentially destabilizing effects
3
of refugees displaced by the war and, in response, the

1
Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23, p.21
2
UNHCR, The State of the World's Refugees 2012: In Search of Solidarity (Oxford University Press, 2012)
3
ibid
office of the United Nations High Commissioner for Refugees (UNHCR) was established on
14 December 1950, and the Convention Relating to the Status of Refugees
4
(the Refugee
Convention) followed soon after at a special United Nations (UN) conference on 28 July
1951. The convention entered into force in April 1954.

The Refugee Convention is the key legal document in defining who is a refugee, their rights
and the legal obligations of states
5
, and the UNHCR is mandated by the United Nations to
lead and coordinate international action for the worldwide protection of refugees and the
resolution of refugee problems
6
.

While UNHCR's mission is nominally based on the belief that everyone has the right to seek
asylum and find safe refuge in another State
7
, this right (outlined in the prior Universal
Declaration of Human Rights) is never mentioned in the Refugee Convention itself, although
it is generally thought that this right is presupposed by the Convention
8
. Instead, the Refugee
Convention focusses on defining what a refugee is, and creating a legal framework for how
refugees must be treated by states.

The Refugee Convention defines refugees as people who:
owing to a 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 such fear, is unwilling to avail
himself of the protection of that country
9
.

For these refugees, thus defined, UNHCR has sought to find durable solutions, rather than
short-term fixes. As UNHCR states, a durable solution, by definition, removes the objective
need for refugee status by allowing the refugee to acquire or reacquire the full protection of a

4
Convention relating to the Status of Refugees, opened for signature 28 July 1951, (entered into force 22 April
1954)
5
UNHCR, The 1951 Refugee Convention <http://www.unhcr.org/pages/49da0e466.html>
6
UNHCR, History of UNHCR <http://www.unhcr.org/pages/49c3646cbc.html>
7
UNHCR, UNHCR - Mission Statement <http://www.unhcr.org/pages/49ed83046.html>
8
S. Kneebone, 'Introduction: Refugees and Asylum Seekers in the International Context - Rights and Realities'
in S. Kneebone (ed) Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives (Cambridge
University Press, 2009) 1-31
9
Convention relating to the Status of Refugees, opened for signature 28 July 1951, (entered into force 22 April
1954), Article 1
state
10
. The three broad categories of durable solutions are: voluntary repatriation, local
integration and third country resettlement, and each has been emphasised at different points
depending on the individual or group concerned, the ideological paradigm, and the political
climate.

The history of persecution of Jews in Europe, culminating in the Nazi atrocities of WWII,
and the Zionist movement, provided the template for the Refugee Convention and
UNHCR
11
. The persecution of Jewish people, for reason of their religion, was the paradigm
condition the drafters meant to encompass
12
. In fact, the convention was initially
dramatically underfunded and only envisioned to help Europeans displaced by the war, a
mandate that was only to last three years
13
. The UNHCR and the Refugee Convention are a
product of their times and owe much to the positions of powerful states at its introduction,
particularly the fact that the US was then entering its first period of disillusion with the
United Nations
14
. In 1967 the geographical and temporal restrictions were removed in the
Protocol Relating to the Status of Refugees
15
.

In the decades following the Convention, under the bipolar logic of the Cold War, refugees
came to be understood primarily as those fleeing communist regimes. Under this logic,
refugees were seen by the West as symbols of ideological triumph, as well as sources of
intelligence. They became instruments of the Cold War and sources of espionage and
information
16
, part of anti-communist foreign policy
17
. According to some, the
Convention was written by Western states in code, as part of their own desire to give
international legitimacy to their efforts to shelter self-exiles from the socialist states
18
. It is
claimed that the US particularly pursued only its own self-interest and eliminated the need to
distinguish economic migrants from political refugees, provided the individuals in question

10
UNHCR, The State of the World's Refugees 2012: In Search of Solidarity (Oxford University Press, 2012)
11
Howard Adelman, 'From Refugees to Forced Migration: The UNHCR and Human Security1' (2001) 35(1)
International Migration Review 7-32
12
Andrew E Shacknove, 'Who is a Refugee?' (1985) Ethics 274-284, p.18
13
UNHCR, The 1951 Refugee Convention <http://www.unhcr.org/pages/49da0e466.html>
14
Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23
15
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, vol. 606 (entered into force
4 October 1967)
16
Gil Loescher, 'The UNHCR and world politics: state interests vs. institutional autonomy' (2001) 35(1)
International Migration Review 33-56
17
Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23, p.10
18
James C Hathaway, 'Reconsideration of the Underlying Premise of Refugee Law, A' (1990) 31 Harv. Int'l. LJ
129, p.151
came from communist or communist dominated countries
19


For the US, under the bipolar logic of the Cold War, combatting communism was their only
real priority and the Refugee Convention was increasingly seen as offering an additional
medium through which to pursue other strategic ends
20
. For example, in 1948 following the
communist coup dtat in Czechoslovakia, the USs primary concern was that, if the Czechs
leaving were not classified as refugees, and if voluntary repatriation were to be initiated, then
the broader struggle against communism would be weakened
21


A complex issue of persecution
According to Goodwin-Gill:
[In t]he international refugee regime that emerged in the late 1940s and early
1950s [c]reated though confrontation, refugees were defined by the politics of
denunciation in a persecution-oriented definition that continues to limit and confuse
not only at the international operations level, but also in national asylum
procedures
22
.

In fact, even at the time, the decision to base the new refugee definition on the concept of a
well-founded fear of persecution was seen by several states as proof that the Convention was
a political tool designed to condemn, to denounce, and provoke disorder in countries of
origin
23


In this way, by accepting refugees from communist countries, the US was condemning those
states, and communism itself, as causing harm to its citizens. An interesting counterpoint to
this can be seen in the Australian treatment of Tamil asylum seekers. The Australian
governments seems unwilling to grant asylum to Tamils, perhaps because it would equate to
a condemnation of the Sri Lankan government, which is regarded as a friend. In the wake of
media and public outcry over a boat of Tamil asylum seekers returned to authorities in Sri

19
Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23, p.10
20
Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23, p.11
21
ibid, pp.16-17
22
ibid, p.21
23
ibid, p.17
Lanka, without even proper refugee status determination (RSD). Prime Minister Abbott was
quoted as saying ''Sri Lanka is not everyone's idea of the ideal society but it is at peace . . . a
horrific civil war has ended. I believe that there has been a lot of progress when it comes to
human rights and the rule of law in Sri Lanka.''
24


Through its persecution-oriented definition, the Refugee Conventions focus is on causes
rather than effects. The definition of a refugee within the Convention focuses solely on causes
of harm in two separate ways: firstly through the use of the term persecution; and secondly
by clarifying that the persecution must be grounded in reasons of race, religion, nationality,
membership of a particular social group or political opinion
25
. This requirement, for
persecution to be for the reason of those five things, is referred to as the nexus clause. In
this way the harm itself is secondary to the reason, or cause of the harm and, by many
readings, the harm is irrelevant on its own.

Unfortunately for refugees, there is a common failure by states to see persecution except
within their own narrowly defined conception
26


Interpreting and implementing the Refugee Convention
The Refugee Convention has been ratified by 145 nations, but, once ratified, the Convention
must then be implemented into the national legal system. Fewer states have taken this next
step and, even when they have, there is a large amount of discretion in how it is implemented.
It is claimed that this discretion has led to implementation being done in such a way as to
deny refugees the rights which are due to them under the international regime of refugee
protection
27
. The undeniable trend is for industrialized nations to apply additional restrictive
measures aimed at deterring or deflecting asylum seekers. Ignoring the true complexity of the
migration-asylum nexus, which makes mixed flows of people with mixed motivation the

24
Tony Abbot, cited in Sarah Whyte, 'Tony Abbott praises Sri Lanka's human rights progress amid speculation
Tamil asylum seekers were handed over to country's navy', The Sydney Morning Herald (Sydney), July 3, <
http://www.smh.com.au/federal-politics/political-news/tony-abbott-praises-sri-lankas-human-rights-progress-
amid-speculation-tamil-asylum-seekers-were-handed-over-to-countrys-navy-20140703-3b9qf.html >
25
Convention relating to the Status of Refugees, opened for signature 28 July 1951, (entered into force 22 April
1954)
26
J. Vernant, The refugee in the post-war world (Yale University Press, 1953), pp.15-16
27
S. Kneebone, 'Introduction: Refugees and Asylum Seekers in the International Context - Rights and Realities'
in S. Kneebone (ed) Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives (Cambridge
University Press, 2009) 1-31, p.1
true norm, nations juxtapose real refugees with mere economic migrants, and this false
dichotomy, combined with security rhetoric, is then used to justify such restrictive measures
28


Running parallel to issues of implementation, is the complexity of interpretation. Throughout
the history of the Convention there have been wildly varying interpretations of the refugee
definition. As a result of its great practical impact, virtually every word of the core phrase of
the refugee definition has been subject to interpretive dispute
29
.

While the well-founded aspect of the definition has acquired a fairly well-settled gloss
30
,
having been decided by the highest courts of the United States, the United Kingdom and
other states, there are still questions regarding the relative weight of well-founded versus
fear. Does one bear more weight than the other, must a refugee prove both? Does the test
require a subjective assessment of the applicants state of mind, their fearfulness? There has
been great controversy surrounding these questions especially given that at times, refugee
status may be denied to at-risk applicants who are not in fact subjectively fearful
31
. As the
Michigan Guidelines state, the existence of subjective fearfulness in the sense of trepidation
should neither be a condition precedent to recognition of refugee status, nor advantage an
applicant who faces an otherwise insufficiently well-established risk
32


What about persecution? As Steinbock asks, What does it mean to be persecuted and that
the persecution be for reasons of race, religion, nationality, membership in a particular social
group, or political opinion?
33
. This issue is still very much contested. The nexus clause is
one of the most difficult aspects of refugee determination today
34
, largely because, while

28
S. Kneebone, 'Introduction: Refugees and Asylum Seekers in the International Context - Rights and Realities'
in S. Kneebone (ed) Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives (Cambridge
University Press, 2009) 1-31
29
Daniel J. Steinbock, 'The refugee definition as law: issues of interpretation' in Frances Nicholson and Patrick
Twomey (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes (Cambridge
University Press, 1999) 13-36, p.14
30
ibid
31
University of Michigan Law School, International Refugee La: The Michigan Guidelines on Well-Founded
Fear, 28 March 2004, available at: http://www.refworld.org/docid/467fa3fb22.html [accessed 5 July
2014], p.1
32
Ibid, p. 1
33
Daniel J. Steinbock, 'The refugee definition as law: issues of interpretation' in Frances Nicholson and Patrick
Twomey (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes (Cambridge
University Press, 1999) 13-36
34
James C Hathaway and Michelle Foster, 'Casual Connection (Nexus) to a Convention Ground, The' (2003) 15
Int'l J. Refugee L. 461, p.461
causation and intention are analytically distinct the two are commonly conflated in
refugee law
35
.

Another point of controversy is the question of what constitutes a social group? For
example, gender issues such as female genital mutilation, fit only very uncomfortably into the
category of social group and, at least until recently, homosexuals were not viewed as a
social group and thus did not fulfill the nexus requirement. Both of these examples of vexed
social group qualifications have generated a large academic literature, and much case law
36
.

There are those who argue that in the object and purpose of the Convention social group is
meant only to pertain to class-related groupings. Under this interpretation, persecution for
reasons of gender or sexuality are not covered by the Convention at all. As Shacknove
discusses, there has been an incremental trend towards defining women as a social group
but this was most likely not contemplated by the drafters of the Convention for whom it
can be argued the whole concept of social group persecution in general ought not be
extended much beyond the sense of social class
37
.

It must be taken into account that, persecution for reasons of homosexuality was not
perceived as a problem by the High Contracting Parties when the convention was being
drafted
38
. Nevertheless, the issue is important because a huge gulf has opened up in
attitudes to and understanding of gay persons between societies and it is one of the most
demanding social issues of our time
39
. It can be argued that the fact that the issue of
persecution on grounds of sexuality, or gender, was not considered by the drafters, is a reason
to allow a broader definition of social group. Such an extension of protection under the
Convention can be argued to be consistent with the object and purpose, given that it is
persecution and, rather than being considered and rejected, it was simply ignored,
unsurprisingly given the historical era.

In recent decades there has been a shift whereby refugee claims increasingly arise from civil
wars, rather than intrastate wars or repressive authoritarian governments. Circumstances of

35
Ibid, p.461
36
See LORD HOPE, 'Case Law HJ and HT v SSHD' (2010) 22(4) International Journal of Refugee Law 623-
672
37
Andrew E Shacknove, 'Who is a Refugee?' (1985) Ethics 274-284, p.29
38
ibid,, p.623
39
ibid, p.624
civil war, further muddy the water of refugee determination under the Convention. Civil
conflict, by its nature is messy and may obscure the boundaries between combat, crime and
persecution
40
. Refugees fleeing these situations may have difficulty proving the nexus
between their persecution and one of the five grounds. The reason for their persecution may
indeed be unfathomable
41


There are two primary ways in which the Convention can be interpreted, although they are
not mutually exclusive: the first is a plain reading of the textual meaning (perhaps including
the drafting history); the second is an approach based on the object and purpose of the
definition. As Steinbock points out, a proper interpretation must take the object and purpose
into account, as, in isolation, a textual reading can have unanticipated effects, with both
restrictive and expansive results
42
. Not only does a plain reading often lead to
unpredictable results, but it can easily contravene another convention, the Vienna Convention
on the Law of Treatise
43
. According to Article 31 of the Vienna Convention a treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be given to the terms of
the treaty in context and in light of its object and purpose
44
(emphasis added).

Despite this, an ordinary or plain meaning textual approach has often been taken,
sometimes with egregiously narrow results. For example, in the US Supreme Court the case
of Immigration and Naturalization Service v. Stevic
45
concluded that, even if well-founded
fear of persecution has been established, a claimant may be returned to their country of
origin unless they can prove that it is more probable that persecution will occur than not. The
result of such conclusions can be seen in state policy such as Australias recent decision that
asylum seekers will be sent home if they have less than fifty percent chance of facing torture
and persecution
46
.


40
Andrew E Shacknove, 'Who is a Refugee?' (1985) Ethics 274-284, p.34
41
ibid, p.34
42
Daniel J. Steinbock, 'The refugee definition as law: issues of interpretation' in Frances Nicholson and Patrick
Twomey (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes (Cambridge
University Press, 1999) 13-36
43
United Nations, Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, (entered into
force 27 January 1980)
44
ibid, p.12
45
INS v. Stevic (1984) 467 US 407
46
Migration Amendment (Protection and Other Measures) Bill 2014 2014 (The Parliament of the
Commonwealth of Australia)
As Shacknove argues, not only are there significant questions as to whether such textual
readings are true to the object and purpose of the Convention, this approach is simply
inadequate to respond to the myriad circumstances that bring asylum seekers to invoke
refugee status
47
.

Partially perhaps in response to perceived lack of clarity, or inadequacies in the Refugee
Convention, there have also sprung up many complementary and/or competing systems,
organisations and documents which either broaden, or narrow the definition. The range of
these far exceeds the allotted length for this paper, but an important example is the 1969
Organisation of African Unity (OAU) Convention Governing the Specific Aspects of
Refugee Problems in Africa. This Convention broadens the refugee definition, removing the
requirement for persecution by adding to the standard definition:
the term refugee shall also apply to every person who, owing to external
aggression, occupation, foreign domination or events seriously disturbing
public order in either part or the whole of his country of origin or nationality,
is compelled to leave his place of habitual residence in order to seek refuge in
another place outside his country of origin or nationality.
48


This definition of refugee represents a salient challenge to the proposition that persecution
is an essential criterion of refugeehood.
49


Durable solutions as reparation?
There is an argument made that finding durable solutions for refugees could, and perhaps
should, be viewed as a form of reparation, rather than simply humanitarianism
50
. This idea goes
against the rhetoric of refugee issues being non-political, as it requires the apportioning of
responsibility, perhaps even blame, but, as has been shown, refugee issues have rarely been
approached in an entirely non-political manner, regardless of rhetoric. As Loescher argues, In

47
Andrew E Shacknove, 'Who is a Refugee?' (1985) Ethics 274-284, p.17
48
Convention Governing the Specific Aspects of Refugee Problems in Africa ("OAU Convention"), opened for
signature 10 September 1969, (entered into force 20 June 1974)
49
Andrew E Shacknove, 'Who is a Refugee?' (1985) Ethics 274-284, p.275
50
James Souter, 'Durable Solutions as Reparation for the Unjust Harms of Displacement: Who Owes What to
Refugees?' (2014) 27(2) Journal of Refugee Studies 171-190
practice, of course, UNHCRs work has been inescapably political
51
and it is perhaps
unrealistic to imagine that the problem of refugees can ever be entirely non-political
52

(emphasis added).
According to Souter, and other proponents of a reparation based approach to refugees, durable
solutions may potentially constitute a means through which states can discharge their special
obligations towards refugees for whose flight they are morally responsible
53
. According to
Duthie
54
reparations, and transitional justice mechanisms could be useful in achieving durable
solutions for refugees. Through these mechanisms, durable solutions, be it repatriation,
integration or resettlement, can rectify past injustices
55
.
As Souter goes on to explain, this approach could not, and should not replace a humanitarian
approach as both have important roles to play
56
. A reparation based approach alone would
certainly be insufficient, as it would leave refugees who were victims of persecution by a rogue
state entirely without protection, and would require that responsibility be apportioned for every
refugees circumstances before action could be taken.
Arguably, where this approach functions best, is as a complement to humanitarian protection
goals, where recognition of the reparative value of durable solutions can act as part of an
overall effort to identify the full range of moral obligations that states bear to refugees and
perhaps motivate practical efforts to hold states to those obligations
57
. A workable approach
to refugee issues will always need to marry humanitarian moral duties with the political
realities in some manner, we must always ask whether the politics of protection at any
particular moment are humanitarian or whether they serve primarily other purposes, in which
the refugee is merely instrumental
58


51
Gil Loescher, 'The UNHCR and world politics: state interests vs. institutional autonomy' (2001) 35(1)
International Migration Review 33-56, p.2
52
Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23
53
James Souter, 'Durable Solutions as Reparation for the Unjust Harms of Displacement: Who Owes What to
Refugees?' (2014) 27(2) Journal of Refugee Studies 171-190, p.172
54
R. Duthie, 'Contributing to Durable Solutions: Transitional Justice and the Integration and Reintergration of
Displaced Persons' in R. Duthie (ed) Transitional Justice and Displacement (Social Science Research Council,
2012) 37-63
55
James Souter, 'Durable Solutions as Reparation for the Unjust Harms of Displacement: Who Owes What to
Refugees?' (2014) 27(2) Journal of Refugee Studies 171-190
56
ibid, p.172
57
ibid, pp.172-73
58
Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23
Environmental refugees, a singularly unprotected group
Whilst there are many competing interpretations of almost every part of the Refugee
Convention, including its basic purpose, there can be little argument that, despite rhetoric
about solving the refugee problem, the Convention is, as Goodwin-Gill claims,
persecution-oriented and can be viewed as aiming to protect individuals and groups from
discrimination and persecution, and not those who experience harm or displacement in the
absence of discrimination or persecution. The clear focus is on causes.

What does all of this mean for the relatively new, and rapidly growing category of
environmental refugees? While a reading of the Convention in good faith, and based on the
object and purpose may help to rule out some of the more egregiously non-humanitarian
interpretations of the refugee definition, it cannot help to recognise environmental refugees.
The persecution-oriented refugee definition leaves little room for interpretation.
Environmental refugees are not being persecuted, or if they are, that persecution is not the
cause of their harm and/or displacement. For this reason, almost no reading of the Refugee
Convention can offer protection to environmental refugees. It is clear from a reading of a
drafting history of the Refugee Convention that they explicitly rejected more general terms
for the definition in favour of a well-founded fear of being persecuted for reasons of race
religion, nationality and political opinion
59
.

Some claim that the object and purpose of the Convention is based on more general human
rights, due to the Preamble to the Convention which states:

Considering that the Charter of the United Nations and the Universal Declaration of
Human Rights approved on 10 December 1948 by the General Assembly have
affirmed the principle that human beings shall enjoy fundamental rights and freedoms
without discrimination
60


This approach makes a shift from causes to effects. Aleinikoff claims that Persecution might
well be given a free-standing meaning not one that necessarily invokes the five grounds of

59
Andrew E Shacknove, 'Who is a Refugee?' (1985) Ethics 274-284, p. 17
60
Convention relating to the Status of Refugees, opened for signature 28 July 1951, (entered into force 22 April
1954)
the test
61
. According to this argument, a lack of basic human rights, in and of themselves,
could represent persecution.

This would be, regardless of the humanitarian motivation, as egregious a failure to interpret
the Convention in good faith as more narrow interpretations are. While it is now well
established that the meaning of persecution should be interpreted within a human rights
framework
62
, insofar as the actions which amount to persecution should be human rights
based, this does not, and cannot, alter the meaning of the word persecution. While human
rights violations can, and often do, amount to persecution, they must take place is a manner
that is discriminatory in some way. As Shacknove plainly states, refugee law, predicated on
the two great paradigms of the post-war period: the rights of non-discrimination and free
expression says, in effect, that harm cannot legitimately be premised on an individuals
personal characteristics or status
63
. A purely human rights based approach, which ignored
the persecution-oriented definition in the Convention, would represent an attempt to
extract a purpose from the language and then subordinate the language to the discovered
purpose.
64


Whilst one might argue that the drafters of the Convention, given their era, might not have
considered issues of persecution based on gender and sexuality (thus opening the door to a
broader interpretation of the grounds for persecution), it is hopelessly unrealistic to think
that, given the mention of the UDHR in the Conventions Preamble, and its recent
implementation, that the drafters were not well aware of the nature of human rights violations
and their relationship to persecution. If the drafters had meant that a violation of human rights
(as laid out in the UDHR) equated to persecution, they would have said so.

Given this, one might ask whether the issue of environmental refugees need be considered
under the Refugee Convention at all. Should the refugee definition be kept narrow in order to
maintain its value, and ensure the protection of real refugees, as defined by persecution?


61
T Alexander Aleinikoff, 'The Meaning of Persecutionin United States Asylum Law' (1991) 3(1)
International Journal of Refugee Law 5-29, p.5
62
S. Kneebone, 'Introduction: Refugees and Asylum Seekers in the International Context - Rights and Realities'
in S. Kneebone (ed) Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives (Cambridge
University Press, 2009) 1-31, p.4
63
Andrew E Shacknove, 'Who is a Refugee?' (1985) Ethics 274-284pp.20-21
64
ibid, p.
As Goodwin-Gill argues:
just as the politicization of protection can constrain options for action, so too can
over-emphasis of otherwise self-evident humanitarian considerations. Both the
idealist and the realist are often rather too detached from the facts on the ground and
the consequences of pursuing short-term goals
65
.

In other words, we must be careful not to throw out the baby with the bath water in a well-
intentioned, idealistic attempt to increase access to the legal framework of the Refugee
Convention.

There were approximately 33.9 million persons classified as people of concern by UNHCR
in 2011, an increase from 19.2 million just 6 years earlier
66
. There are currently 45.2 million
forcibly displaced persons worldwide
67
, with that number all but certain to grow dramatically
in coming years. As UNHCR states, Global social and economic trends indicate that
displacement will continue to grow in the next decade
68
. Displacement will not only
continue to grow, but trends and patterns will change due to factors such as population
growth and urbanization, and, of course, climate change and natural disasters
69
. Climate
change and environmental degradation will affect not only the scale, but the complexity of
human displacement
70
. It is important to ask, as Steinbock does, Which foreign victims of
oppression or hardship should we shelter?
71


What must be understood is that the issue of environmental refugees does not take place in a
vacuum. While there are certainly complex issues surrounding the separation of
environmental refugees from economic migrants, and questions of a hierarchy of protection,
if environmental refugees are not offered appropriate protection by the international
community then the issue will undoubtedly result in increasing tension in poor and unstable

65
Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23, p.21
66
UNHCR, The State of the World's Refugees 2012: In Search of Solidarity (Oxford University Press, 2012),
p.5
67
UNHCR, Facts and Figures about Refugees' (nd.) <http://www.unhcr.org.uk/about-us/key-facts-and-
figures.html>
68
UNHCR, The State of the World's Refugees 2012: In Search of Solidarity (Oxford University Press, 2012),
p.5
69
ibid, p.5
70
ibid, p.26
71
Daniel J. Steinbock, 'The refugee definition as law: issues of interpretation' in Frances Nicholson and Patrick
Twomey (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes (Cambridge
University Press, 1999) 13-36
regions and, almost certainly, an increase in conflict (thus increasing the numbers of real
refugees who fit the persecution-oriented definition). In 1985 Shacknove gave an elegant
example of this issue, which I will recreate here in full:

Currently approximately 90,000 persons are fleeing starvation in Mozambique and
crossing into Zimbabwe, yet the United Nations High Commission for Refugees
(UNHCR) and other agencies are not mobilizing on their behalf. The rationale is that
these persons are not victims of persecution and therefore do not come under the
mandate of the High Commissions Statute. The reluctance of the international
community to offer its assistance not only condemns these persons to yet more
suffering but also forces Zimbabwe, whose own population is starving, to offer asylum
unilaterally, thus further destabilizing Southern Africa
72


While this is an eloquent, and elegant example of the issues in play, today, and especially in
the near future, the numbers of people at risk are vastly greater than 90,000, and the stakes
much higher.

Who are environmental refugees, and how many are at risk?
The definition of what might constitute an environmental refugee remains vague, largely
due to their lack of representation in any formal international agreement, but, estimates
suggest there could be 200 million by 2050
73
.

Climate change will cause displacement in a myriad of ways:
Increased natural disasters natural disasters have already increased from 133 in
1980, to an average of 350 per year in recent years
74
.
Environmental degradation and slow-onset disasters such as loss of productive
agricultural land and desertification.
Inundation caused by rising sea levels an issue of immediate relevance to low lying
island states.

72
Andrew E Shacknove, 'Who is a Refugee?' (1985) Ethics 274-284, p.276
73
Derek R Bell, 'Environmental refugees: What rights? Which duties?' (2004) 10(2) Res Publica 135-152
74
UNHCR, The State of the World's Refugees 2012: In Search of Solidarity (Oxford University Press, 2012)
Conflict and violence sparked by resource scarcity which will be especially relevant
if environmental refugees arent dealt with proactively.

The concept of environmental refugees was first developed by the United Nations
Environment Programme (UNEP) in 1985, and was defined by UNEP researcher El-Hinnawi
as:
those people who have been forced to leave their traditional habitat, temporarily or
permanently, because of a marked environmental disruption (natural and/or triggered
by people) that jeopardized their existence and/or seriously affected the quality of
their life
75
.

A problem with this definition, as pointed out by Bates
76
, is that it makes no distinction
between victims of different kinds of environmental disruptions, despite them having
dramatically different needs, and thus requiring different approaches. On the one hand, for a
person displaced by a natural disaster, such as a flood or a volcanic eruption, a durable
solution would most likely entail short-term asylum followed by repatriation assistance; on
the other hand, for a person displaced by long-term environmental issues such as
desertification or rising sea-levels, a durable solution would most likely entail integration in
the state of asylum, or resettlement in a third country. To gloss over such distinctions, is to
ignore the reality of environmental displacement and, as Bates warns, So many might be
classified under the umbrella of environmental refugee that critics question the usefulness
of the concept
77
.

In fact, a number of critics have questioned the very concept of environmental refugees,
regardless of the definition. Richard Black has called the concept unhelpful and unsound in
intellectual terms, and unnecessary in practical terms
78
. The complaints are primarily that:
the term environmental refugee oversimplifies the causes of forced migration; there is no
evidence of large-scale displacements caused by environmental disruptions; that it is a
strategic mistake to broaden the meaning of the term refugee in such a way because the
inherent complexity of the environmental refugee category, and the potential numbers that

75
Essam El-Hinnawi, Environmental refugees (UNEP, 1985); Norman Myers and Jennifer Kent, Environmental
exodus: an emergent crisis in the global arena (Climate Institute, 1995)
76
Diane C Bates, 'Environmental refugees? Classifying human migrations caused by environmental change'
(2002) 23(5) Population and environment 465-477
77
ibid, p.466
78
Richard Black, 'Environmental refugees: myth or reality?' (2001)
might fall under its umbrella, could encourage nations to shift increasingly towards treating
all refugees as economic migrants
79
.

In 1989, Tolba, the then Executive Director of the United Nations Environmental Program
(UNEP), warned that as many as 50 million people could become environmental refugees
80

and, the following decade, Norman Myers was sounding the alarm that refugees were
already, or would soon become, the largest group of involuntary migrants
81
. According to
Myers, in 1995, there are at least 25 million environmental refugees today, a total to be
compared with 22 million refugees of the traditional kind the total number may well
double by the year 2010 if not before
82
. He claimed that wealthy nations had a choice:
export the wherewithal for sustainable development or import growing numbers of
environmental refugees
83


As we have seen in the almost decade since, there is a third option, business as usual and the
adoption of what Bell calls a lifeboat ethic: denying refugee rights to the environmentally
displaced and treating them as a security issue
84
. As Bell points out, Current policies high
levels of consumption, resource use and waste production; low levels of humanitarian aid;
environmental degradation promoted by multinational companies; and ever-tighter
immigration and asylum policies suggest that the developed world has chosen the third
option.
85


Environmental refugees, who is responsible?
While environmental refugees are, and will be, displaced by a complex and varied range of
issues, by far the largest driver is certain to be climate change. That the responsibility for climate
change does not rest equally on all people or all nations is beyond dispute. The same historical
activities which have driven climate change have allowed exponential growth in the worlds

79
Derek R Bell, 'Environmental refugees: What rights? Which duties?' (2004) 10(2) Res Publica 135-152
80
Diane C Bates, 'Environmental refugees? Classifying human migrations caused by environmental change'
(2002) 23(5) Population and environment 465-477
81
Norman Myers, 'Environmental refugees' (1997) 19(2) Population and Environment 167-182
82
Norman Myers and Jennifer Kent, Environmental exodus: an emergent crisis in the global arena (Climate
Institute, 1995)
83
ibid, p.136
84
Derek R Bell, 'Environmental refugees: What rights? Which duties?' (2004) 10(2) Res Publica 135-152, p.138
85
ibid, p.138
wealthy nations. While, arguably, the entire human population has benefited from
industrialisation and economic growth, it is a benefit that has accrued disproportionately to
those in the industrialised nations themselves
86
. Given this, it is, or at least should be, easily
apparent who is responsible: responsibility should fall to each country in proportion to the
amount that the country has contributed to causing the problem
87
.

The worlds poor and developing nations are simultaneously at the greatest risk, with the least
capability to adapt to and mitigate change, and have the least responsibility for the impending
crisis. As climate change advances droughts, floods and famines will become more common,
and poor nations tend to be far more reliant on agriculture for basic subsistence, and for its
significantly larger percentage of their GDP
88
. There are also the dramatic cases of low-lying
island nations which are already seeing internal displacement and whose entire countries could
soon be uninhabitable due to sea-level rise
89
.

Given the role that developed nations have played in creating environmental burdens, it seems
clear that there is an injustice that must be rectified. Therefore it seems logical that those
displaced by climate change related environmental disruption should be offered durable
solutions as an act of reparatory justice.

Nevertheless, as the Refugee Convention stands, environmental refugees, given that they are
not persecuted, are not protected by the Refugee Convention. Regardless of responsibility
or justice, the Convention simply does not cover environmental refugees. Does this mean that
those displaced by environmental disruptions can only be dealt with once rendered stateless,
after their island has been taken by rising sea levels, or their government and society have
collapsed due to loss of productive land or natural disasters?

As unsatisfactory as this solution would be, given that displaced, but not persecuted,
environmental refugees would unquestionably cause increased instability and conflict in

86
P. Singer, Practical Ethics (Cambridge University Press, 2011), p. 220
87
ibid, p.220
88
See for example, Pradeep Kurukulasuriya, et al., 'Will African agriculture survive climate change?' (2006)
20(3) The World Bank Economic Review 367-388; Peter G Jones and Philip K Thornton, 'The potential impacts
of climate change on maize production in Africa and Latin America in 2055' (2003) 13(1) Global environmental
change 51-59; John F Morton, 'The impact of climate change on smallholder and subsistence agriculture' (2007)
104(50) Proceedings of the national academy of sciences 19680-19685
89
Justin T Locke, 'Climate changeinduced migration in the Pacific Region: sudden crisis and longterm
developments1' (2009) 175(3) The Geographical Journal 171-180
vulnerable regions of the world, even here the Convention often fails, as displaced stateless
persons are one of the groups least likely to find durable solutions. In fact statelessness
persists almost everywhere
90
, despite the 1954 Convention relating to the Status of Stateless
Persons and the 1961 Convention on the Reduction of Statelessness. A telling example of this
can be found in the protracted crisis of Palestinian refugees, where Statelessness has
dominated and shaped the lives of four generations of Palestinian refugees since their exodus
in 1948
91
. The issue of Palestinian refugees is particularly thorny because it was the Zionist
movement, and the formation of the Jewish state of Israel, so tied up in the genesis of the
Refugee Convention, which displaced them in the first place.

What we need is a new legal instrument
92
but there is a distinct lack of political will.

Changing definitions, changing conventions?
Is the problem then insurmountable? Could the definition of a refugee under the convention
be shifted away from persecution towards the idea of simply lacking the sufficient
protection of a state? The first formal description of a refugee, introduced in 1926 by the
League of Nations High Commissioner for Refugees took the relatively non-controversial,
at least at the time, approach of focusing on being outside the country of origin and not
enjoying its or another countrys protection
93
.

Would the international community, and particularly vulnerable individuals and
communities, be better served by a refugee definition which focused wholly on the
responsibility of a state to protect its citizens? Under such a system, if individuals were not
protected from certain harms, for whatever reason, they would be classified as refugees
through the failure, or inability of their state to protect them from said harms.

It may be easy to argue that we in the wealthy world owe environmental refugees durable
solutions as a form of reparation but, regardless of moral obligation, idealist statements do

90
UNHCR, The State of the World's Refugees 2012: In Search of Solidarity (Oxford University Press, 2012),
p.15
91
Abbas Shiblak, 'Stateless Palestinians' (2006) 26(2006) Forced Migration Review 8-9
92
Bonnie Docherty and Tyler Giannini, 'Confronting a rising tide: A proposal for a convention on climate
change refugees' (2009) 33 Harv. Envtl. L. Rev. 349
93
Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23, p.11
little to resolve complex issues. That said, without an appreciation of, and commitment to,
justice, the entire liberal democratic project is jeopardized. According to Bell, the question
of justice for environmental refugees is twofold: what are our responsibilities to actual
environmental refugees?; and what are our responsibilities to potential environmental
refugees?
94


Would extending refugee rights to environmental refugees open the door to economic
migrants whose harm is solely through the economic failure of their state? How could we
delineate between those harms caused by environmental degradation on the one hand and
poverty on the other? Many issues of environmental damage could, in theory at least, be
avoided or mitigated through public infrastructure, education and technology, so finding a
line between the two would be exceedingly complex. Simultaneously, if environmental
displacement is partly, or primarily due to state failure, could that be understood to represent
a form of persecution? If inequality within a nation is stark, and/or corruption rampant in
the ruling class, does their failure to protect poor and powerless citizens of their nation from
the ravages of environmental change represent persecution based on a lower social class?

The issue of environmental refugees is illustrative of the broader problems with the Refugee
Convention: its persecution-oriented definition and its nexus requirement of the five grounds
which the persecution is for the reason of.

Who are refugees?
In order for the Refugee Convention to function as a framework for the protection of
displaced persons, we must understand where the outer boundaries of the definition might
lie
95
. Without such boundaries the Convention would amount to meaningless feel good
rhetoric, but where should those boundaries lie?

Would the international community, and refugees, be better served by continuing to exclude
those not explicitly, or implicitly, referred to in the refugee definition? As Shacknove
suggests it might be sensible to be especially careful to give priority to those who

94
Derek R Bell, 'Environmental refugees: What rights? Which duties?' (2004) 10(2) Res Publica 135-152
95
Andrew E Shacknove, 'Who is a Refugee?' (1985) Ethics 274-284, p.35
unquestionably are covered by the Conventions text and purpose
96
. Would a new
convention offer the best results for both environmental refugees, and those already covered
by the Refugee Convention? Angela Williams argues that we need a regionally oriented
regime operating under the auspices of the UN Climate Change Framework
97
, claiming that
a refugee approach to environmental displacement in ineffective due to the Refugee
Convention and widespread confusion and skepticism regarding the terminology relating to
environmental refugees
98
. Whereas, in Confronting a Rising Tide: A Proposal for a
Convention on Climate Change Refugees
99
, Docherty and Giannini claim An independent
convention is the best option
100
and lay out a roadmap for exactly such a new convention.

If we accept Docherty and Gianninis premise, or even Williams, we must ask how realistic
it is that a new system could be created, and accepted (not to mention implemented) by a
large range of states, in a timeframe and manner which would meaningfully improve
protection for victims of environmental degradation and climate change? Given this difficulty
(it could reasonably be claimed impossibility), and given the sheer number and desperate
need of existing and expected environmental refugees, might it be more important that these
people have some degree of protection under the existing Convention, than that we continue
to exclude them for the sake of the already imperfect protection of refugees who fit the
persecution-oriented definition of the Refugee Convention?

Conclusion
While this paper does not purport to have the answers or a solution, certainly not an easy or
immediate one, it has attempted to elucidate the reality of the current Refugee Conventions
inability to sufficiently protect displaced persons. A combination of changing times, a
politically and ideologically fraught history and present, disagreements on its object and
purpose, and the persecution-oriented nature of the refugee definition render the
Convention incapable of responding adequately to the realities of the refugee issue in the

96
ibid
97
Angela Williams, 'Turning the tide: recognizing climate change refugees in international law' (2008) 30(4)
Law & Policy 502-529, p.502
98
ibid, p.503
99
ibid
100
Bonnie Docherty and Tyler Giannini, 'Confronting a rising tide: A proposal for a convention on climate
change refugees' (2009) 33 Harv. Envtl. L. Rev. 349
modern world. Nevertheless, it is unquestionably better than the easiest alternative, in
which the Convention did not exist at all.

That the Refugee Convention is incapable of resolving refugee issues as they stand today, let
alone into the future with accelerating climate change and environmental degradation, seems
clear. As Goodwin-Gill claims, the persecution-oriented definition in the Refugee
Convention continues to limit and confuse
101
. In this case, the question becomes twofold:
firstly, might the Refugee Convention be updated to allow it to effectively help resolve
modern refugee issues, or is a new document, new laws, a new system, needed?; and
secondly, is either feasible in the current political climate?

In the six years since Goodwin-Gills claims, little has changed. Nor do imminent changes
seem likely. It seems that, as he warned, the Convention, and particularly the UNHCR are
destined to be judged a failure, and accountable, and not merely excused because it tried
hard in difficult political circumstances
102




101
Guy S Goodwin-Gill, 'The politics of refugee protection' (2008) 27(1) Refugee Survey Quarterly 8-23, p.21
102
ibid, p.22