Extending Refugee Definitions to Cover Environmentally Displaced Persons Displaces Necessary Protection

• Author: Kara K. Moberg
• Position: J.D. Candidate, The University of Iowa College of Law, 2009
• Pages: 04

J.D. Candidate, The University of Iowa College of Law, 2009; B.A., Kansas State University, 2006. I would like to thank Robert and Diane Moberg for their dedication to my education and their endless love and support. Thank you to my friends and family who encouraged me with so much grace. Also, I thank the student writers and editors of the Iowa Law Review for their hard work.

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I Introduction

I hear the waves on our island shore

They sound much louder than they did before

A rising swellflecked with foam

Threatens the existence of our island home.¹

One of the smallest and most remote nations in the world is becoming even smaller. Tuvalu is only twenty-six square kilometers of land, consisting of three islands and six atolls in the Pacific Ocean.² In 1997, the first of Tuvalu's islands, Tepuka Savilivili, disappeared into the sea.³ Due to global warming and the corresponding rising sea levels, scientists predict that the nine remaining Tuvaluan islands will be completely submerged within the next fifty years, making Tuvalu the "first nation sunk by global warming."⁴Knowing that the demise of its homeland is inevitable, the Tuvalu government has, unsuccessfully, sought agreements with Australia and New Zealand that would allow Tuvaluans to migrate to Australia or New Zealand if an emergency evacuation is necessary.⁵ While neither the Tuvaluan government nor its citizens desire to seek refuge outside of their home nation, they recognize that they may not have a choice.⁶

Whereas Tuvalu's complete submersion is impending, the more imminent fear is that current weather conditions are menacing the current habitability of the islands.⁷ Tuvaluans depend on farming and fishing as Page 1110 their means of survival.⁸ The soil in Tuvalu, however, has become fragile, making farming difficult.⁹ Flooding, as well as an increase of salt in the soil, is causing the crops that Tuvaluans depend on to die.¹⁰ The storms in Tuvalu are increasingly ferocious, with flooding and high currents threatening to sweep Tuvaluans into the ocean.¹¹ To escape the "onslaught of sea level rise" in Tuvalu, many Tuvaluans are already seeking ways to immigrate to foreign countries.¹² Each year, seventy-five Tuvaluans may access New Zealand immigration status through employment immigration laws;¹³ however, Tuvalu has an estimated population of 12,177 people living on its islands.¹⁴

Tuvalu is just one example of the many countries that are losing inhabitable land. The effects of climate change prevent Arctic hunters from traveling over thinning ice and snow as they pursue bears and seals, their sources of nourishment and income.¹⁵ In the African Sahel, the warmer temperatures of climate change resulted in the death of millions of animals and hundreds of thousands of people.¹⁶ The expanding deserts in Morocco, Page 1111 Tunisia, and Libya consume more than one thousand square kilometers of valuable land each year.¹⁷

It is clear that climate change and environmental displacement due to such climate change is occurring.¹⁸ As the Prime Minister of Tuvalu, Saufatu Sopoanga, stated at the Fifty-eighth Session of the U.N. General Assembly, "The threat [of severe weather events] is real and serious."¹⁹ The 0.7 degree increase in the average temperature of the Earth's surface since the late 1800s has already changed weather patterns, melted polar ice caps, heightened the spread of human diseases, and declined crop yields.²⁰Already, earthquakes, hurricanes, floods, and other natural disasters have displaced twenty-five million people.²¹ Ten percent of the world's population currently lives on coastal lands that are less than ten meters above sea level; thus, rising sea levels will cause problems for hundreds of millions of people.²² Also, hundreds of millions of people depend on melting snow and glaciers to supply water for irrigation.²³ As these sources deplete, many people face forced relocation.²⁴ Due to the greenhouse gases already in our atmosphere, even without the emission of any additional greenhouse gases, the temperature will continue to increase beyond the year 2100, causing further depletion of our environment.²⁵

Among all the reasons for migration, natural disasters are the leading cause of displacement.²⁶ Hurricane Katrina alone resulted in the displacement of over half a million people within the United States.²⁷ Two Page 1112 years after Hurricane Katrina, thousands of displaced victims remained unable to return to their homes in the Gulf Coast Region.²⁸

While the situation for people affected by Hurricane Katrina is far from ideal, many of them were able to find refuge within the United States-in official shelters, private homes of friends and family, hotels, and other public facilities-and benefit from federal housing vouchers.²⁹ Further, they have the hope and expectation of returning to their homes in the Gulf Coast region.³⁰ For many people forced to relocate due to changes in environmental conditions, returning home is not an option³¹ and resettlement may only be possible outside of their home nation.³² Due to "drought, soil erosion, desertification, deforestation and other environmental problems, together with associated problems of population pressures and profound poverty," a large number of people "can no longer gain a secure livelihood in their homelands."³³ As of now, however, there is no international protocol binding or even encouraging other nations to accept these environmentally displaced persons ("EDPs").³⁴ Without either Page 1113 the acceptance of or a recognized remedy for EDPs, questions remain about where EDPs and potential EDPs can seek new lives after climate change has taken their homes and their way of life.

This Note first addresses the failure of international laws to protect environmental migrants.³⁵ Second, it describes how the United States has applied the refugee definition in its overseas program and asylum law.³⁶ It addresses how environmental migrants are unlikely to benefit from the definition of refugee and the dangers in construing the law to allow EDPs to fall under the pre-existing refugee definition.³⁷ Finally, this Note argues that neither refugee nor asylum status should extend to protect EDPs and instead concludes that new U.S. and international laws are necessary to offer adequate protection to EDPs.³⁸ Such laws should encompass an immigration program that extends visas based on environmental displacement under a more protective, cost-sharing approach.³⁹

II International Refugee Laws Fail to Protect EDPs

While international law offers protection to displaced populations through refugee laws,⁴⁰ it does not extend that protection to EDPs. The Refugee Convention and Protocol provides the definition of refugee for the 147 countries that are parties to the convention.⁴¹ It states that refugee status extends only to (1) persons outside their country of origin (2) who are Page 1114 unwilling or unable to receive protection from their country of origin or to return to their country of origin (3) due to a "well-founded fear of being persecuted" in their country of origin, and (4) that persecution is based on "reasons of race, religion, nationality, membership of a particular social group or political opinion."⁴²

Persons displaced by the environment, therefore, do not fall directly under the international legal definition of refugee.⁴³ In 1979, the U.N. High Commissioner for Refugees ("UNHCR") produced the United Nations' Handbook on Procedures and Criteria for Determining Refugee Status ("UNHCR Handbook") as a guide for governments to determine who qualifies for refugee status.⁴⁴ In these guidelines, the UNHCR "rules out" victims of natural disasters from acquiring refugee status.⁴⁵ According to a study requested by the UNHCR, the "events that cause displacement must 'derive from the relations between the State and its nationals,'" omitting persons displaced due to the environment from the definition of refugee in international law.⁴⁶

Therefore, while many academics call persons displaced by environmental circumstances "environmental refugees,"⁴⁷ this term is a misnomer since EDPs do not technically qualify as refugees under international law.⁴⁸ Still, some academics attempt to stretch the definition of Page 1115 refugee to include "environmental migrants" under the United Nations' definition.⁴⁹ Others argue that while the current definition does not include EDPs, the United Nations should amend the definition so that it does.⁵⁰ As discussed in Part IV, extending protection to EDPs in either of these ways would result in more harm than it would solve.

Ultimately, extending any protection under current international refugee laws is discretionary for the countries that have ratified the Refugee Convention and Protocol.⁵¹ Therefore, even if a country has accepted the definition of refugee in the Refugee Convention and Protocol, that country retains the discretion to interpret the definition as it pleases. Thus far, no country has extended refugee status to EDPs.⁵² Instead, countries are construing the definition of refugee even more narrowly so that even fewer persons qualify for protection within their borders.⁵³ Page 1116

Some international agreements expressly expand the definition of refugee; however, even they explicitly state that environmental danger and damage alone do...