|Environmental Change and International Law: New Challenges and Dimensions (UNU, 1992, 493 pages)|
|International human rights law and environmental problems|
|8. The human rights system as a conceptual framework for environmental law|
At various times in history individuals and groups have been compelled to abandon the home state because of the fear of persecution occasioned by policies based on religion, race, nationality, social, or political programmes and the like. The mass emigration of Russians and Armenians provoked by the installation of a Communist regime in Russia and similarly the emigration of Jews and other communities when Germany and its neighbouring territories came under East rule are historic examples of refugee movements. Natural disasters, destitute economies, and general political turmoil have also prompted large groups of people to seek refuge in more stable societies. Migrations of this character have generally taken place from less-developed countries. Environmental disasters may now be added to the list.
The international instruments incorporating the refugee law today are the Convention Relating to the Status of Refugees66 and the related Protocol67 Besides there are international institutions, the primary refugee relief organization of the United Nations being the United Nations High Commissioner for Refugees (UNHCR), aided by Unesco, UNICEF, and UNDP. In the drafting and adoption of the Convention an attempt to embody a comprehensive humanitarian protection was defeated. The generality of human rights values was compelled to give way to a much narrower focus, that of persecution for reasons of race, religion, nationality, or membership of a particular social group or political opinion. Persons who feared persecution by the denial of basic civil and political rights alone fell within the Convention.68 The grant of refugee status was broadly intended for the benefit of European refugees from Eastern Europe. Non-European states together with Belgium and the United Kingdom argued against a regional bias being given to the Convention. But the situation remained unaltered, except that subsequently by the Protocol the temporal restriction enacted in the definition of "refugee" was removed. The limitation implied by the grounds on which refuge could be sought continued as before. A narrow door was opened. The broad concept of humanitarianism was abandoned. This resulted in a two-tiered scheme for refugees, European refugees alone being granted legal protection in the context of residence abroad. UNHCR's competence enabled relief to be given to large groups of persons in Africa, Asia, and Latin America, but the assistance is not of the same quality as that provided to refugees under the Convention, being confined to an emphasis on return, local resettlement, or confinement in camps of refugees into Western countries. This dichotomy in international refugee law has been sought to be explained by the anxiety of the developed states to avoid difficulties of adjustment within their societies on account of cultural, ethnic, political, and economic differences.69
Differential treatment under the international refugee law proceeding essentially on considerations of territorial origin, ethnic distinctions, and cultural differences testifies to refuge being granted for reasons convenient to the state of refuge rather than considerations flowing from the broad concept of humanitarianism. The title to consideration for the grant of refuge should be determined by the nature of the forces compelling the seeking of refuge. This is reflected in the Preamble to the Convention, which, in its first two recitals, refers to the principle affirmed in the Charter of the United Nations and the Universal Declaration of Human Rights that human beings will enjoy fundamental rights and freedoms without discrimination, and that the United Nations is seized of a profound concern for refugees to whom it assures the widest possible exercise of those fundamental rights and freedoms. Having regard to the present state of the international refugee law, the criticism that "the rhetoric of human concern lingers, but the modern apparatus of international refugee law is more closely tied to the safeguarding of developed States than to the vindication of claims to protection"70 appears to possess some merit.
From what has been observed, it would seem that the context of the human rights culture as a value base for environmental law is not served by the present state of international refugee law. Mankind, both in its spatial as well in its intertemporal dimensions, is entitled to an environment of equality and freedom from discrimination. Natural disasters, destitute economies, and general political turmoil constitute environmental conditions as distressing as the fear of persecution on the grounds set forth in the definition clause of the Convention. When mass distress because of environmental disasters is added to man's misfortunes, the case for a broad-based humanitarianism acquires an even greater significance.
A more rational perspective characterizes the regional arrangements obtaining today in Africa and Latin America. The Organization of African Unity's Convention Governing the Specific Aspects of Refugee Problems in Africa grants protection not only to persons covered by the United Nations Convention, but also to persons 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."71 There is a specific obligation to receive refugees and to secure settlement of those refugees. The Organization of American States adopted the Cartagena Declaration, which also extends protection, in addition to the persons described in the definition clause of the United Nations Convention, to persons "who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order."72
Insufficient provision in the present international refugee law for the protection of refugees can itself provide the conditions for environmental degradation. When masses of people are uprooted from their homes and have to seek refuge in another country, the want of proper facilities brings in problems of health, want, and demoralization. An environmental hazard begins to take shape, whose dimensions can affect not only the refugees but may extend to the resident population itself. Tensions are bred and escalate with easy provocation and an atmosphere surcharged with violence invariably adds to the problem of maintaining sound environmental conditions. The right to a healthful environment is put into jeopardy, with consequences that could have been avoided by a wiser, more equitable, and more generous international refugee law.