Master Thesis by Jens Ankum
Persecution the context of a natural disaster
Supervisor:Antoinette Hildering
Public International Law
Abstract
Only people who have a well-founded fear of being persecuted may qualify as refugees in the sense of article 1A of the Refugee Convention. Acts which are attributable to the asylum seekers State may form a serious indication of his well-founded fear of being persecuted. A State has to do something wrong before a person will be granted refugee status. In the context of a natural disaster States often have done nothing wrong. States do not create natural disasters. People who flee their country in the context of a natural disaster will consequently in most scenarios not be recognized as refugees. When the State however has done something in the context of a natural disaster, a person might be recognized as a refugee. In my thesis I tried to describe some categories of acts which might constitute persecution
I was able to come up with my research question after reading literature on environmental and climate change refugees. I looked at hard and soft law to see which obligations States have in the context of natural disasters. International and domestic case law was used to see how non-compliance with these obligations could translate into a well-founded fear of being persecuted.
Till now there are very few cases a claim of being-persecuted in the context of a natural disaster has been accepted by a Court. However I managed to come up with four categories of acts which theoretically can form an indication of a person’s well-founded fear of being persecuted. These four categories are: 1) The State has purposively created a natural disaster, 2) the State should have taken appropriate measures to prevent the natural disaster, 3) the State does not act neutral in response to a natural disaster 4) the state does not accept foreign aid. The first two categories can be distinct from the last two in the sense the acts which fall within these first two categories have in some way led to a natural disaster. Acts which fall within the latter two categories are merely done in the context of a natural disaster.
Index
Introduction 2
Chapter 1: The meaning of ‘’the environment’’ and ‘’a natural disaster’’ 4
Chapter 2: Persecution and Natural disasters 8
Chapter 3: Persecution in the context of a natural disaster 14
The State has created the natural disaster 16
The State should have taken appropriate measures 17
The State does not act neutral in response to a natural disaster 23
The State does not accept foreign aid 27
Introduction
On the UN-Climate Summit of 2014 Kathy Jetnil-Klijner (activist from the Marshall Islands) Kathy Jetnil-Klijner read a poem.1 The text expressed the fear many have about the
vulnerable future of the Islands.2 In the poem which she originally wrote the poem for her
then 7 months old daughter, she referred to the effects Climate Change has on the future on the Islands : ‘’they say you, your daughter, and your granddaughter, too will wander rootless with only a passport to call home’’.3 Kathy Jetnil-Klijner urged the 120 states in attendance
to take measures. She promised her daughter : no one’s drowning, baby no one’s moving, no one’s losing their homeland, no one’s gonna become a climate change refugee.4
Jetnil-Klijner called the people who would have to leave the Marshall Islands when the Islands would become inhabitable climate change refugees. Most people who flee their country to escape the effects of climate change are not recognized as refugees under article 1A of the 1951 Refugee Convention. That same conclusion applies to those who fly from natural disasters not caused by Climate Change. One important aspect of article 1A of the 1951 Refugee Convention is that an individual has to have a well-founded fear of being persecuted when he would get returned to his Country of Origin. In the context of a natural disaster there is often no act of persecution which can be attributed to a State. The State did most likely not create the natural disaster. Consequently States can most often not be held responsible for the devastating harm which is done by the natural disaster.
Although people who flee their countries in the context of a natural disaster are not recognized as refugees, there number is on the rise. According to research of Columbia University each year an estimated amount of 98000 people will by the end of this Century try to find asylum in Europe alone.5 Although the biggest mass of ‘’Environmental Refugees’’
will not be on the move in the upcoming years, it seems likely that there will be a growth in 1 Anne-Gine Goemans, ‘Kunnen zij het tij keren: de emotionele strijd van de Marshalleilanders tegen de stijgende zeespiegel’, De Volkskrant (11 May 2018).
2 Anne-Gine Goemans, ‘Kunnen zij het tij keren: de emotionele strijd van de Marshalleilanders tegen de stijgende zeespiegel’, De Volkskrant (11 May 2018).
3 Kathy Jetnil Klijner, ‘Dear Matafelle Peinem’ (24 September 2014)
https://www.kathyjetnilkijiner.com/united-nations-climate-summit-opening-ceremony-my-poem-to-my-daughter/ last accessed 7-6-2018.
4 Kathy Jetnil Klijner, ‘Dear Matafelle Peinem’ (24 September 2014)
https://www.kathyjetnilkijiner.com/united-nations-climate-summit-opening-ceremony-my-poem-to-my-daughter/ last accessed 7-6-2018.
5 Kevin Krajick, ‘Climate Migrants Will Soon Shift Populations of Many Countries, Says World Bank Movements Within Nations May Dwarf Those Across Borders’, (State of the Planet Earth Institute Columbia University 19 March 2018), < http://blogs.ei.columbia.edu/2018/03/19/climate-refugees-will/ last accessed 7-6-2018.
the number of asylum requests done by people who flee their country in the context of a natural disaster. Some scholars has raised the question whether the 1951 Refugee Convention should be renegotiated to address this issue.6 It seems however unlikely that the Refugee
Convention will be renegotiated. Issues relating to refugees are often complex and controversial. Many fear that a renegotiation of the Refugee Convention would open a Pandora’s box.7 Other issues could be renegotiated as well, which might have the
consequence that less people will be recognized as refugees. It is therefore most likely that the current convention and the definition of article 1A will be (for the upcoming years) the framework to determine whether a person should be recognized as a refugee.
In this thesis I will answer the following research question: which categories of acts done in the context of a natural disaster may form a serious indication of a person’s well-founded fear of being persecuted? This research question will be answered in Chapter 3. Three sub
questions will be answered in chapter 1 and 2.
The sub question which will be discussed in the first chapter is: What is the meaning of ‘’ a natural disaster’’ and ‘’the environment’’? The second chapter is used to answer the second and third sub question which are: What is the meaning of persecution in the sense of article 1A of the 1951 Refugee Convention? and: Why do people who flee their country in the context of a natural disaster do most often not have a well-founded fear of being persecuted? The third chapter will be used to discuss some categories of acts done in the context of a natural disaster which might actually lead to a well-founded fear of being persecuted. These four categories are: 1) the State has purposively created a natural disaster, 2) the State should have taken appropriate measures to prevent the natural disaster, 3) the State does not act neutral in response to a natural disaster, 4) the State does not accept foreign aid.
In this thesis to the research question related issues will not be discussed. I will not analyse whether there is a nexus between a convention ground and an act of persecution in the context of a natural disaster. I will also not discuss whether an internal flight alternative is available in the situations discussed in this thesis. Consequently a conclusion that an act justifies the conclusion that a person has a well-founded fear of being persecuted does not also justify the conclusion that a person should be recognized as a refugee.
6 Bonnie Docherty and Tyler Giannini, ‘Confronting a rising tide: A proposal for a convention on Climate Change Refugees’, (33 Harv. Envtl. L. Rev. 349 (2009).
7 Luca Ferracioli, ‘The Appeal and Danger of a new Refugee Convention’, (Social Theory and Practice 40 (1):123-144 (2014).
Chapter 1: The meaning of ‘’the environment’’ and ‘’a natural
disaster’’
In this chapter a number of relating topics will be discussed. All relate to a context in which an act of persecution might be done: the context of a natural disaster. First the meaning of a ‘’Natural Disaster’’ within current International Law will be discussed. Secondly two categories of natural disasters will be distinct: rapid onset disasters and slow onset disasters. Thirdly the causality between certain human acts and the existence of natural disasters will be discussed. Fourthly the meaning of ‘’the environment’’ within current International Law will be a topic of focus. Natural disasters create harm to the environment, so it is important to understand what is meant when one refers to ‘’the environment”.
Natural disaster
There is no clear definition of ‘’a natural disaster’’ in current International law. The ILC has however in its Draft articles on the protection of persons in the event of disasters tried to define ‘’disaster’’.8According to the ILC a disaster means: ‘’ a calamitous event or series of
events resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society’’.9 The ILC did only define ‘’disaster’’ , but did not
define when a disaster is a natural disaster. The preamble however shows that the articles are also focused on natural disasters, as the text refers to: ‘’the frequency and severity of natural and human-made disasters and their short-term and long-term damaging impact’’.10
Two categories of natural disasters can be distinct. The first category of disasters are the so-called rapid-onset disasters. In these situations the harm to the environment is done in a relatively short period of time. Most often one single event causes the harm to the
environment. Examples of rapid-onset disasters are hurricanes, storms and volcano eruptions. Storms and floods have created a lot of damage in recent in years, as these two kind of 8 Draft articles on the protection of persons in the event of disasters, Yearbook of the International Law Commission, 2016, vol. II, Part Two 2016.
9 Ibid, article 3A.
natural disaster have counted for more than 60 percent of all natural disasters—1,885 cataclysmic events that killed more than 57,000 people.11
The second category of natural disasters are so-called slow-onset natural disasters. As the words suggest these kind of disasters create harm to the environment over a longer period of time. The United Nations office for the Coordination of Humanitarian Affairs (OCHA) has define a slow onset disaster as: ‘’a disaster that does not emerge from a single, distinct event but one that emerges gradually over time, often based on a confluence of different events’’.12
Among these gradual environmental processes which are referred to as slow onset disasters are processes like Desertification, forest degradation, sea level rise, erosion and glacial retreat.13
Influence of human acts.
In the preamble of the Draft articles on the protection of persons in the event of disaster a distinction is made between human-made and natural disasters. That distinction is a bit misleading.14 Human acts and natural phenomena interact and might in combination lead to
harm to the environment. It is very well possible that harm to the environment is not the result of one of the two sources, but the result of both sources. The best example in this regard is Climate Change. Both rapid onset and slow onset disaster caused are caused by climate change. Climate change is a quite broad term which refers mainly to global warming but also entails a greater climate variability or, specifically, to a higher frequency of extreme weather events such as heat waves, heavy rains, violent storms, droughts, and others.15
As global warming forms the core of climate change it makes sense to explain this
phenomenon in a bit more detail. The first layer of the atmosphere (the troposphere) contains concentrations of certain gases which have the effect that an average global temperature is 11 WBGU (Wissenschaftlicher Beirat der Bundesregierung Globale), ‘Climate Change as a Security Risk. London’: Earthscan, (London: Earthscan 2007).
12 OCHA, ‘OCHA and slow-onset emergencies’, OCHA Occasional Policy Briefing Series Brief No. 6: OCHA and slow-onset emergencies (April 2011).
13 United Nations Framework Convention on Climate Change, ‘Slow Onset Events, Technical Paper’’, FCCC/TP/2012/7 (26 November 2012), para 10.
14 Draft articles on the protection of persons in the event of disasters, Yearbook of the International Law Commission, 2016, vol. II, Part Two 2016, preamble.
15 Pierre-Marie Dupuy and Jorge E. Vinuales, International Environmental Law, (First published by Cambridge University Press in 2015), page 141.
maintained.16 A higher concentration of greenhouse gases in this first layer lead to a higher
retention of energy and in an increase of the average temperature on earth.17 This increase in
temperature leads to changing environmental circumstances on earth. Evidence shows that human influence has been the dominant cause of the global warming.18 Human activities have
since the beginning of the Industrial Revolution led to an increase of 40 % CO2 in the atmosphere.19 The use of greenhouse gases has created tremendous progress for mankind.
The downside is however severe, now climate change has an enormous negative impact on life on earth.
It is beyond doubt that climate change causes many slow onset natural disasters.20 The causal
link between climate change and these slow-onset disasters is quite close. Science shows that slow onset disaster like desertification, the rise of the sea level and the decreased snow cover of the earth do all exist as a result of the rising temperature on earth.21 To many people it is
less well-known that the increase of rapid onset/single event disasters is also caused by Climate Change. A recent study published in Nature shows evidence that: “Given that atmospheric water-holding capacity is expected to increase roughly exponentially with temperature—and that atmospheric water content is increasing in accord with this
theoretical expectation—it has been suggested that human-influenced global warming may be partly responsible for increases in heavy precipitation. Here we show that human-induced increases in greenhouse gases have contributed to the observed intensification of heavy precipitation events.’’22
So although a typhoon might come unexpected, the fact that there is a typhoon might be attributed to a long term process. The exact link between the occurrence of one specific rapid onset disaster (like a typhoon) and the process of Climate Change is however much harder to establish than the link between Climate Change and slow onset disasters. Also before the 16 Ibid.
17 Ibid.
18 IPCC, Climate Change 2013, ‘’The Physical Science Basis, Summary for Policymakers’, section B, at 2, and section D.3, at 15.
19 National Oceanic and Atmospheric Administration Earth System Research Laboratory Global Monitoring, ‘Full Record Global CO2’, < https://www.esrl.noaa.gov/gmd/ccgg/trends/gl_full.html> Last accessed 17 July 2018.
20 IPCC, Climate Change 2014, ‘Synthesis Report Summary for Policymakers’.
21 United Nations Framework Convention on Climate Change, ‘Slow Onset Events, Technical Paper’’, FCCC/TP/2012/7 (26 November 2012), para 10.
22 Min, Seung-Ki, Xuebin Zhang, Francis W. Zwiers and Gabriele C. Heger, ‘Human Contributions to More-intense Precipitation Extremes’, in Nature (February 2011), page 378-381.
Industrial Revolution rapid onset disaster occurred occasionally, which shows that not all rapid onset disasters are caused by global warming.
Environment
Natural disasters create harm to the environment. It is however often unclear what is meant when the term environment is used. International law also does not offer a clear definition of what ‘’the environment’’ means. Some aspects of what the terms means can be found in sources of International Law. One first aspect is that an environment is a place where people live. The ICJ in its Advisory Opinion on the legality of Nuclear Weapons observed that among other things the environment represents the living space.23 The living space referred to
by the ICJ seems not to be geographical limited. The meaning of the living space is universal in the context the ICJ uses the term. For our purposes however a limitation to a more concrete place is more useful. Such a place can be abstracted from other places in the sense that at that specific place people would experience problems related to the quality of the environment which they would not experience at another place. When for example the soil is too dry to grow plants in a rural area in an African State the local environment in that area is bad, not in an area elsewhere in that same State.
The Stockholm principle 2 adds another useful characteristic by its reference to: ‘’the natural resources of the earth, including the air, water, land, flora, and fauna and especially
representative samples of natural ecosystems’’.24 A limitation to natural resources seems to
make sense as it excludes political and cultural considerations. The natural resources of the earth can however also be affected by human acts. The quality of the air (and the
environment) in a small village can for example be affected by the expulsion of gases of the nearby factory. It is in that sense important to keep in mind that human acts often influence the quality and the availability of natural resources.25 The natural and the man-made always
interact with one another.
23 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para 29.
24 Declaration of the United Nations Conference on the Human Environment, Stockholm, 16 June 1972, UN Doc. A/CONF 48/14/Rev. 1, principle 2.
Chapter 2: Persecution and Natural disasters
In the first part of this chapter the current meaning of a well-founded fear of being persecuted will be discussed. In the second part of the chapter I will discuss why people who flee their country in the context of a natural disaster do most often not have a well-founded fear of being persecuted .
Persecution in International Law
There is no universal accepted definition of persecution in the sense of article 1A of the Refugee Convention. The concept is a rather flexible and indeterminate one.26 The mere
strength of this indeterminacy is that also acts which were unknown to the drafters of the 1951 Convention can constitute persecution. This evolutionary approach to the law can be seen as a proper response to a world in which men always seem to find ways to persecute fellow men in a manner unknown before.27 At the same time the mere fact that persecution is
ill-defined, creates the opportunity for States to interpret the term ‘’persecution’’ restrictively.28
Although there is no definition of persecution, there is some consensus with regard to some categories of acts which would fall within the scope of persecution in the sense of article 1A of the 1951 Refugee Convention. First of all it may be inferred from article 33 of the 1951 Refugee Convention that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of particular social group would in all cases constitute persecution.29 Article 33 expresses the principle of non-refoulement. It would make sense that
a person a who cannot be expelled also have the right to obtain a protection status. Secondly serious violations of an individual’s Human Rights would constitute persecution.30 This
category was explicitly mentioned in the UNHCR Guidelines, just as the third category which consists of those acts which taken apart do not constitute persecution, but in combination do justify that conclusion.31 It seems to me that only Human Rights which are codified in the
26 Fransesco Maiani, ‘The Concept of “Persecution” in Refugee Law: Indeterminacy, Context-sensitivity, and the Quest for a Principled Approach’, Les Dossiers du Grihl (28 February 2010) .
27 Atle Grahl-Madsen, The Status of Refugees in International Law, vol. I, 1966, 196 or 197; UNHCR, Ha (...), cit 193.
28 James Hathaway, The Law of Refugee Status, 1991, 231-233.
29 UNHCR handbook and guidelines on procedures and criteria for determining refugee status, (Reissued Geneva, December 2011), para 51.
30 Ibid.
International Bill of Rights (Universal Declaration, ICESCR and ICCPR) can constitute persecution. Only these Human Rights are universally accepted. The right to a clean environment for example cannot be found in the International Bill of rights and can consequently not constitute persecution.
Only acts which are attributable to a State can constitute persecution. It is fairly obvious that violations of Human Rights by organs of the State can always be attributed to that State.32
The State should have respected the Human Rights of its citizens, but violated that obligation by conducting acts which infringes these rights. States are also under the obligation to protect its citizens against acts of other citizens.33 A failure to do so might result in a successful claim
under article 1a of the 1951 Refugee Convention. In these situations the omission to act might constitute persecution.
Although it might be possible to distinct three categories of acts, in a specific situation it can still be rather difficult to assess whether a certain act constitutes persecution. According to Goodwin-Gill and McAdam the relevant test is one of degree and proportion.34 A complex of
factors have to be taken into account when a state or Court have to assess whether an
individual has a well-founded fear of being persecuted. Three main factors are (1) The nature of the freedom threatened, (2) the nature and severity of the restriction, and (3) the like hood of the restriction eventuating in the individual case.35 The first two factors seems to relate in
the sense that a minor violation of fundamental Human Right may already constitute persecution, while a minor violation of a less fundamental right does not justify that
conclusion. The third category affirms that the persecution-test is forward looking. Evidence which shows that a person is persecuted in the past forms a serious indication of the
applicants well-founded fear of being persecuted.36 This evidence does however not justify
the conclusion that an individual has a well-founded fear of being persecuted. The real question is whether there exist a risk that the person will be persecuted when he would get returned to his country of origin.37 That risk might no longer exist for a person who has been
32 UNHCR handbook and guidelines on procedures and criteria for determining refugee status, (Reissued Geneva, December 2011), para 65.
33 Ibid.
34 Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law, (3rd Edition 22nd March 2007), page 92.
35 Ibid.
36 UNHCR handbook and guidelines on procedures and criteria for determining refugee status, (Reissued Geneva, December 2011), para 45.
persecuted in the past. There might be another government in place, which might not want to persecute him. The term persecution might also be a misleading term. A distinction has to be made between an act of persecution and a well-founded fear of being persecuted. An act of persecution is an act which has already been done. There has to be reliable evidence which shows that the State has committed an act of persecution. Such an act of persecution can then lead to a well-founded fear of being persecuted. That fear might become reality when the asylum seeker would be returned to his Country of Origin. To avoid that scenario an asylum seeker which has a well-founded fear of being persecuted should be protected by another State.
One could also approach persecution from the perspective of protection.38 States have to offer
their citizens sufficient protection. When evidence shows that a State is unable or unwilling to protect one of its citizens, he or she should be offered protection by another state. Acts of persecution may justify the conclusion that a State is unable or unwilling to protect a certain individual.
Qualification directive of the European Union
The Qualification Directive of the European Union sets out criteria for applicants to qualify for Refugee status member States of the EU.39 The directive does consequently also define
what kind of acts qualify as persecution. In a formal sense the Qualification Directive is of course only binding to Member States of the European Union. It might however be
interesting to see how violations of Human Rights can according to this directive lead to a well-founded fear of being persecuted, as the 1951 Refugee Convention itself is rather silent on this issue.
According to article 9 (1A) of the Qualification Directive there are two important factors which have to be taken into account when assessing whether a violation can be called serious. These factors are (1) the nature and (2) the repetition of the violation. Article 9 (1A) also refers to the existence of derogable rights under the ECHR. This reference to non-derogable rights is however meant as ‘a way of guidance’ . The list of acts included in article 38 Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law, (3rd Edition 22nd March 2007), page 131-134.
39 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted.
9 (2) have that same status. So although it is likely that a violation of a non-derogable right does constitute persecution, that conclusion is not justified in all circumstances.40 Article 9
(1B) adds the possibility that an accumulation of measures (including Human Rights violations) can also constitute persecution.
In the case of Y and Z the European Court of Justice also delved into the question when a violation is serious/severe enough to justify the conclusion that a person has a well-founded fear of being persecuted. According to Court account should be made of ‘’the intrinsic severity of the act as well as the severity of their consequences for the person concerned’’.41
Natural disasters
Only acts or omissions which can be attributed to a State can form an indication of a fear of being-persecuted.42 In the context of natural disasters it is often hard to link the harm done to
the environment or citizens to a particular State.43 States do not create natural disasters and
can consequently not be held directly responsible for the harm caused by natural disasters. Natural disasters are triggered by processes which cannot directly be controlled by States.44
Individual States can also not be held responsible for all the harm which is done to its citizens as a result of Climate Change (which effects could be seen as slow-onset disasters). Climate Change is a universal problem. There is no way States can make sure that Climate Change has no effect on its territory. It is not justified to make a State responsible for harm which it did not create nor could prevent.
Another important factor is the indiscriminate nature of natural disasters.45 A natural disaster
does not choose it victims. An Asylum Seeker who wants to be recognized as a refugee will most likely be unable to argue that he is treated differently than other victims of the natural disaster. When an individual is not treated differently than others by the State, a claim to obtain refugee status based on acts of persecution will most likely be unsuccessful. When 40 ECJ 5 September 2012, Y and Z, Cases C-71/11 & C-99/11, para 57.
41 ECJ 5 September 2012, Y and Z, Cases C-71/11 & C-99/11, para 65.
42 UNHCR handbook and guidelines on procedures and criteria for determining refugee status, (Reissued Geneva, December 2011), para 65.
43 Jane McAdam, Climate Change, Forced Migration, and International law (Published May 2012, Oxford Scholarship), chapter 2.
44 Although human acts influence processes which causes natural disasters, see also chapter 1.
45 See on discrimination: UNHCR handbook and guidelines on procedures and criteria for determining refugee status, (Reissued Geneva, December 2011) para 54 and 55.
such claims would be accepted under international law, every citizen of a State in which a natural disaster took place would be entitled to a Refugee status. When a natural disaster however makes the territory of a State inhabitable to life 46, the citizens of that State have no
other option than to flee their country. Current International refugee law seems not to offer an adequate response to such a scenario .
The International Community
Some scholars suggested that the harm caused by natural disasters should be attributed to the International Community as a whole .47 The proposition is that all States (but especially
Western-States) have by their acts contributed to Climate Change. States should have taken measures to reduce emissions of greenhouse gases, but did fail to do so. The failure to limit the emission of greenhouse gases should than translate into the obligation of the International Community to protect those who suffer from the harm caused by Climate Change.
When such an argument would apply many victims of natural disasters would leave their own States to receive protection in other States. They might want to obtain protection in a State which acts/omissions to some extent caused their harm. Such a reading of the Refugee convention would be utterly creative. There is no basis in the text to assume that the
International Community as a whole can be hold responsible for the suffering of individuals. The Refugee Convention is based on the presumption that a victim is fleeing from its
persecutor. In this scenario the asylum seeker would flee to his persecutor.
Australian Lawyers tried to argue this stance in the case of an asylum seeker from Kiribati. The Australian Refugee tribunal however strongly rejected this reading of the 1951 Refugee Convention. It stated that: ‘’In this case, the tribunal does not believe that the element of an attitude or motivation can be identified, such that the conduct feared can be properly considered persecution for reasons of a Convention characteristic as required. … There is simply no basis for concluding that countries which can be said to have been historically high emitters of carbon dioxide (p.46) or other greenhouse gases, have any element of motivation to have any impact on residents of low lying countries such as Kiribati, either for
46 Small Islands in Oceania might even disappear in the next 100 years.
47 Jane McAdam, Climate Change, Forced Migration, and International law (Published May 2012, Oxford Scholarship), chapter 2.
their race, religion, nationality, membership of any particular social group or political opinion’’.48
Chapter 3: Persecution in the context of a natural disaster
Introduction
When a State has done nothing wrong there is no act of persecution in the sense of article 1A of the Refugee Convention. A contrario when a State has not complied with one or more of the obligations which it has in the context of a natural disaster, it might have thereby
committed an act of persecution. There is nothing inherent within the concept of persecution which exclude the possibility that acts attributable to States in the context of a natural disaster to qualify as persecution in the sense article 1A of the Refugee Convention.49 Some
Courts do recognize the possibility that people who flee their country in the context of a natural disaster might be recognized as refugees. The New Zealand Immigration and
Protection Tribunal for example considered that ‘’The relationship between natural disasters, environmental degradation, and human vulnerability to those disasters and degradation is complex’’.50 It would consequently be incorrect to reject every claim which is done by
individuals which have fled their country in the context of a natural disaster.
It is likely that claims in this context will often be based on violations of socio-economic rights. The category of socio/economic rights has in the past been distinct from the category of civil/political rights. It was perceived that States are under an immediate obligation to respect civil or political rights, while it does not have an immediate obligation to protect or fulfil socio-economic rights.51 This traditional distinction is fading.52 Today it is perceived
that every Human Right contains a duty to respect, protect, and fulfil. States also have some immediate obligations with regard to Socio and Economic rights. In General Comment 12 the Committee on Economic, Social and Cultural rights has for example stated that: ‘’ States have a core obligation to take the necessary action to mitigate and alleviate hunger, even in times of natural or other disasters’’.53
49 Jane McAdam, Climate Change, Forced Migration, and International law, (Published May 2012, Oxford Scholarship), chapter 2.
50 AF (Kiribati) [2013] NZIPT 800413, para 57.
51 Theo van Boven (Edited by Daniel Moeckli, Sangeeta Shah & Sandesh Sivakumaran), International Human Rights Law, Oxford University Press, 2nd edition 2013, chapter 7 page 144.
52 Ibid, para 144.
From that perspective it does not seem revolutionary to state that violations of socio or economic rights may form an indication that a person will be persecuted. There has never been anything in the definition of persecution in article 1A to assume that a violation of a socio-economic right cannot constitute persecution. In the past it was however not assumed that States had immediate obligations with regard to socio/economic rights which is could violate. Now that view can no longer be seen as the correct one, it is clear that violations of socio-economic rights can constitute persecution. In this context it is also important to note that a violation of a socio-economic right can just as a violation of a civil or political right be labelled as serious.54
The Travaux préparatoires also contains some signs that the drafters were well-aware of the fact that social or economic factors could force people to flee their country.55 Reference could
also be made to the fact that the drafters did not offer a clear definition of persecution. It would not be against the law to incorporate an important development within International Human Rights law into the concept of persecution in the blank space.
There are two categories of acts attributable to States in the context of a natural disaster which might constitute persecution. The first category consists of those acts which in some way have led to the natural disaster. In these situations there is causal link between the acts of a State and the natural disaster. To determine whether there has been an act of persecution two causal links have to be established.56 First the causal link between the act or omission and
the natural disaster has to be established. Secondly the link between the damage to the environment and a violation of a specific human right has to be established. When that violation of a human right can be labelled as a serious one, there might be an act of persecution.
The second category of acts consists of acts which are done at the time the harm to the environment did already exist. The destroyed environment forms the context in in which individuals or groups are especially vulnerable to get persecuted. The issue of causality is less 54 Geneva Academy of International Humanitarian Law and Human Rights, ‘What amounts to ‘a serious violation of international human rights law’? An analysis of practice and expert opinion for the purpose of the 2013 Arms Trade Treaty’, August 2014, page 6.
55
Hélène Ragheboom,’ The International Legal Status and Protection of Environmentally-Displaced Persons: A European Perspective’, (Human Rights and Humanitarian Law E-Books Online, Collection 2017).56 Pierre-Marie Dupuy and Jorge E. Vinuales, International Environmental Law, (First published by Cambridge University Press in 2015), page 320.
prominent with regard to this second category of acts. The inquiry is simple: did the acts of the State cause a well-founded fear of being persecuted.
In this chapter four kinds of situations will be discussed. Two kind of situations in which the acts of the State did cause the damage two the environment and two kind of situations in which the harm to the environment was already done at the time the State had committed an act of persecution. I will discuss first the situation in which the State has purposively created the natural disaster to reach a certain political goal. Secondly I will discuss the obligation of States to take appropriate measures to prevent natural disasters. Thirdly the obligation of States to act neutral in response to a natural disaster will be a topic of focus, and finally I will discuss how a refusal of a State to accept foreign aid might constitute an persecution
The State has created the natural disaster
Although they rarely do, States can create natural disasters.57 In these kind of situations the
causal link between the acts of the State and the natural disaster is quite easy to establish. A state might purposively harm a local environment to reach a political goal. Most States however refrain from such acts. Creating harm to an environment is an brutal way to reach a political goal. Harm done to the environment could be lasting and alter the way people life in a dramatic fashion. Most States are not willing to take such an extreme measure.
One of the only examples in this category is the draining of marshes in het Southern part of Iraq in 1990’s.58 The Marsh Arabs were an Arabic Etnic that used the marshes to grow their
crops. Saddam Houssein did deliberately drained the marshes to both eliminate the food source of the Marsh Arabs and to make sure that no military opponents could hide in the marshes. The United States and other States have described the draining as genocide and ethnic cleansing.59 The UN has described the draining of the marshes as a ‘’tragic human and
environmental catastrophe’.60 It is fairly obvious that in this kind of situations numerous
human rights are violated. This harm done to environment translates into violations of Human Rights. One violation which is easy to establish is the Right to Food of article 11 ISESCR. 57 AF (Kiribati) [2013] NZIPT 800413, para 59.
58 Human Rights Watch. ‘The Iraqi Government Assault on the Marsh Arabs’, 25 January 2003.
59 United States Institute of Peace, ‘The Marsh Arabs of Iraq: Hussein's Lesser Known Victims’’, November 25,
2002, Nadeem A Kazmi, Sayyid .’The Marshlands od Southern Iraq: A Very Humanitarian Dilemma ‘’ , III Jornadas de Medio Oriente (20 june 2018).
60Hassan, Partow , ‘UN environmental programme releases report on demise of Mesopotamian marshes ’, (Press release). Nairobi/Stockholm: United Nations. UN Environment Programme. (August 13, 2001).
Because the marshes could no longer be used as fruitful land, the Marsh Arabs could not provide for their food needs. Consequently Iraq has violated the Right to Food of the Marsh Arabs.
Serious violations of human rights could constitute persecution.61 Whether a violation is
serious has to be determined on a case by case basis. In these kind of scenarios it is however very likely that a violation of a human right can be called serious. The quality of people’s lives is closely related to the environment they live in. Especially when the harm to the environment is lasting, the quality of people lives is altered in a quite dramatic fashion. It is hard to see how these people could still trust the State which did this harm to them. These people have a well-founded fear of being persecuted and should receive protection in another State.62
The State should have taken appropriate measures
The principle of prevention is well-established in International Environmental Law. It was codified first in 1972 in the Stockholm Declaration on the Human Environment. Principle 21 declares that: ‘’States have the sovereign right to exploit their own resources and the
responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction’’. This principle has been included since 1972 in many treaties and soft-law instruments.63 The customary nature of the principle was confirmed first in the ICJ’S
Advisory Opinion on the Legality of Nuclear Weapons.64 In the Pulp Mills case the ICJ more
extensively discussed the substance of the Prevention-principle in International
Environmental Law and the due diligence obligation which flows from the principle.65 The
court suggests that the due diligence obligation contains both i) an obligation of conduct which requires the implementation an application of appropriate measures for the
61 Although non-serious violations can in combination also justify that conclusion.
62 It seems also likely that there is a nexus between persecution and a convention ground: either political opinion of particular social group.
63 For example in article 193 of UNCLOS.
64 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996.
preservation of the environment66 and ii) the obligation to conduct an environmental impact
assessment test before engaging in possible harming activities.67
The prevention principle as established in International Environmental Law expresses an obligation of States to prevent damage to the environment. Although the prevention of natural disasters is included in this obligation, the obligation of States established by the prevention principle is a broader one. The ILC’s draft articles on the protection of persons in the event of disasters includes a more specific obligation to prevent disasters.68 Article 9 (1) of the Draft
Articles (titled Reduction of the risk of disasters) states that: ‘’Each State shall reduce the risk of disasters by taking appropriate measures, including through legislation and regulations, to prevent, mitigate, and prepare for disasters’’. The work of the ILC in this regard seems to be largely influenced by International Human Rights Law.69 Article 9 seems
to reflect the Right to Life, which is codified in article 6 ICCPR. States are under some positive obligations with regard to this Right to Life. One of these obligations is the
obligation to take measures to prevent natural disasters. The incorporation in the ILC articles shows that many prominent International Lawyers agree that the obligation to take
appropriate measures to prevent natural disasters should be part of binding International Law. These ILC articles are for today however still considered to be soft-law and are consequently not binding as such.
The Committee on Economic, Social and Cultural rights has also stated that States have an obligation to take steps aimed at the prevention of the population exposure to ‘’detrimental environmental conditions that directly or indirectly impact human health’’.70 The only way to
prevent that people are exposed to detrimental environmental condition is to prevent that harm is done to the environment. So implicitly the Committee requires States to take measures to prevent harm to the environment.
The Budayeva case
66 Ibid, paras 102, 181-190.
67 Ibid, para 204.
68 Draft articles on the protection of persons in the event of disasters, Yearbook of the International Law Commission, 2016, vol. II, Part Two 2016.
69 Marie Aronsson-Storrier, Karen da Costa, ’ Regulating disasters? The role of international law in disaster prevention and management’, Disaster Prevention and Management, Vol. 26 Issue: 5, pp.502-513 (2017).
In the case of Budayeva and others vs Russia the prevention principle played an important role, although the Court did not refer to the principle in the case. The case was about Budayeva and others who lived in a small village Russian Caucasus. The village (Tyrnauz) was often impacted by mudslides.71 A dam was made to protect the citizens of the town of
Tyrnauz. The dam was however damaged by a mud and debris flow in august 1999. Despite recommendations of the director of the Mountain Insitute to take restauration measures, the dam was not repaired by the authorities. In august 2000 two other mudslides occurred, leaving 8 persons death and 19 missing.72 The applicants claimed that the authorities had
failed to take appropriate measures to protect the citizens of Tyrnauz against the mudslides and had thereby violated article 2 ECHR.
According to the Court states are under the obligation to take measures to protect the lives of those within its jurisdiction.73 With regard to specific dangerous activities States must govern
the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective
protection of citizens whose lives might be endangered by the inherent risks.74 States enjoy a
wide margin of appreciation to choose which specific measures it takes.75 States enjoy that
margin because no impossible or disproportionate burden must be imposed on the authorities of a state. States should allocate their resources by their own preferences. That margin is even wider with regard to acts which are beyond human control (like a meteorically events).76
When however the danger of a natural hazard is clearly identifiable (especially when it concerns an area in which disasters often occur) the authorities are under the immediate obligation to act.77 In this case the danger was clearly identifiable after the reports of the
director of the Mountain Institute. The Court was consequently able to reach the conclusion that Russia had failed its obligation to take preventive measures and had thereby violated article 2 ECHR.
71 Budayeva v. Russia, Application No. 15339/02, European Court of Human Rights (20 March 2008).
72 Ibid, para 33.
73 Ibid, para 131, but also based on Oneryildiz v. Turkey, No. 48939/99, European Court of Human Rights (18 June 2002).
74 Ibid, para 132.
75 Ibid, para 134.
76 Ibid, para 135.
A conclusion that a State has violated the Right to Life by not taking appropriate measures does not automatically translate into a successful persecution-claim. The question is whether a person who flew its Country after his State did not take appropriate measures to prevent a natural disaster has a well-founded fear of being persecuted. There are good arguments to argue either sides.
To argue in this scenario that a person has a well-founded fear of being persecuted, one could try to argue that Russia had committed a serious violation of the Right to Life. Although there is no definition of what a ‘’serious’’ violation of a Human Right entails, a violation of the Right to Life seems to be a serious violation in almost any situation. This argument could for the most part be based on the text in the UNHCR Handbook, which states that a threat to a person’ life forms the core meaning of persecution in the sense of article 1A.78 A violation of
the Right to Life is of course something else than a threat to the Right of Life, but it can be assumed that an actual violation of the Right to life would also constitute an act of
persecution. Other evidence of the particular serious nature of a violation of the Right to Life is offered by the European Union in its Qualification Directive, which states that a violation of a non-Derogable right would most likely constitute a serious violation of a Human Right.79
In the case of Mcann and others v. United Kingdom the Court established that the Right to Life is a non-derogable right: The Right to life is rank[ed] as one of the most fundamental provisions in the Convention ... one which, in peacetime, admit[ted] of no derogation under Article 15”.80
This argument could be opposed by pointing out that Russia did not purposively violate its obligations. It has been very negligent, but it did not deliberately choose to do harm to the citizens of Tyrnauz. One could consequently argue that an asylum seeker who flew from this situation could still trust his authorities. There are no facts that assume that the government will target an asylum seeker who would return to the place where he used to live. Citizens should not be allowed to flee from governments which have just been negligent.
78 UNHCR handbook and guidelines on procedures and criteria for determining refugee status, (Reissued Geneva, December 2011), para 51.
79 European Union: Council of the European Union, ‘Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), 20 December 2011, article 15 (2).
80 McCann and Others v. United Kingdom, Application no 18984/91, European Court of Human Rights (27 September 1995).
The Budayeva-case is important in the sense that the Court establishes that States have certain obligations to prevent natural disasters. When a State does not comply with its obligations, there might be a violation of a human right (in this case the Right to Life). It is however important to note that the object of protection in the Budayeva case are the lives of the people of Tyrnauz and not the local environment. In that sense the Court does not seem to follow the two-step causal link approach as described on page 15. The observation that Russia did not take sufficient measures to prevent the mudslide led directly to the verdict that Russia violated the Right to Life of article 2 ECHR. The Court did not use a two-step
approach.
AC Tuvalu
The New Zealand Immigration and Protection Tribunal referred a couple of times to the Oneryildiz and Budayeva cases in its verdict in the AC Tuvalu Case.81 The appellant in this
case was a citizen from Tuvalu who tried to obtain international protection in New Zealand. Tuvalu was described in the case as “an extremely small, isolated atoll island nation aligned in a northwest – southwest orientation; disbursed within the central Pacific Ocean”.82
One of the reasons the applicant did not want to get returned to Tuvalu, was the negative impact Climate Change had on his life in Tuvalu. Tuvalu’s vulnerability to the effects of Climate Change is well-documented.83 Tuvaluans have to deal with Coastal erosion, Flooding
an inundation, Water Stress, Destruction to primary sources of substance, damage to
community or individual assets.84 Effects which can be attributed to the rising temperature on
earth.
The first question which the tribunal had to answer was whether the applicants could qualify as refugees. The Tribunal put little attention to the issue and ruled out (mainly based on AF Kiribati) that the appellant could be granted a refugee status.85 As it was fairly clear that the
faced harm did not arise by reason of their race, religion, nationality, membership of any
81 AC (Tuvalu) [2014] NZIPT 800517–520.
82 Ibid, para 5.
83 Paul S. Kench, Murray R. Ford & Susan D. Owen, "Patterns of island change and persistence offer alternate adaptation pathways for atoll nations (Supplementary Note 2)". Nature Communications (9 February 2018).
84 AC (Tuvalu) [2014] NZIPT 800517–520, para 15.
particular social group or political opinion, the court did not have to delve into the question whether the applicants had a well-founded fear of persecution.86
The tribunal more deliberately discussed the obligations of New-Zealand under the principle of non –refoulement in this context. Although non-refoulement is not the topic of this thesis, I would like to argue that the arguments applied by the tribunal could also be used to assess whether a person has a well-founded fear of being persecuted. With regard to both legal concepts, violations of human rights might translate into right of an asylum seeker to obtain a protection status. Aware of the limitations and objections to use a non-refoulement case I will analyse the AC Tuvalu case to see how the reasoning applied by the Court could be of use in a persecution-case.
The tribunal considered that the government of Tuvalu has obligations to take steps to reduce the risk from known environmental hazards.87 The obligations of Tuvalu are however limited
and vary from case to case. According to the tribunal (in citing Budayeva): ‘’The scope of the positive obligations imputable to the State in the particular circumstances would depend on the origin of the threat and the extent to which one or the other risk is susceptible to
mitigation.88 Using this formula the tribunal reached the conclusion that the government of
Tuvalu did not violate the Right to Life of the applicant in this case. It was simply not
possible for the government of Tuvalu to mitigate against the underlying processes which has led to environmental degradation in Tuvalu. It would be unfair to judge that Tuvalu failed to protect this asylum seeker when it is simply not able to prevent the harm done to him..
While the Budayeva case shows that States have obligations to prevent harm, the AC Tuvalu case shows that these obligations are limited. States cannot be expected to do the impossible. It is impossible for a state to prevent that Climate Change has an impact on its territory and its citizens. The Tuvalu case shows that when the harm is just a result of natural occurring phenomena (which resulted from Climate Change) a claim will most likely be unsuccessful. When the harm is however the result of both natural occurring phenomena and acts
attributable to a persecution-claim is much better substantiated.
The European Court of Human Rights also takes different approaches in non refoulement cases (3 ECHR) dependent on the source of the harm.In the N. v. United Kingdom case the 86 As that was irrelevant because the nexus between the fear and an convention ground would be lacking anyway
87 Ibid, para 74, citation in Budayeva v. Russia, Application No. 15339/02, European Court of Human Rights (20 March 2008), para 137.
Court applied a high threshold. This case was about a woman from Uganda who was suffering from aids. The Court noted that the alleged future harm harm would emanate not from the intentional acts or omission of public authorities or non-State bodies but from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.89 The Court noted in this case that the article 3 threshold would only be reached in
very exceptional circumstances where the grounds against removal were ‘’compelling’’.90
The Court did not apply this threshold in the Sufi and Elmi case. In this case the future harm would be a result of both natural occurring phenomena (the drought) and direct and indirect actions of the parties in the armed conflict which was going on in Somalia at the time. Because the future harm would also be result of human acts, the Court found the approach taken in N v. United Kingdom not to be fitting. The Court instead referred to the three factors mentioned MSS v. Belgium and Greece to determine the outcome of the case. According to the Court, States have to be aware of an applicant’s ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time-frame when determining whether it can return a person to his or her Country of Origin in this context.91
The State does not act neutral in response to a natural disaster International Law
In 2007 the International Federation of Red Cross published a set of International Disaster Response Laws (IDRL) 92. All parties to the Geneva conventions have adopted the IDRL’S.
These guidelines have to be regarded as soft-law and do a such not create binding obligations for States. They are used to promote more uniformity in the context of International Disaster Responses and can also be applied by courts to fill in other norms.
The affected-State has based on the guidelines the responsibility to supply basic needs to its citizens after a natural disaster took place.93 It is not unlikely that shortly after the natural
89 N. v. The United Kingdom, Appl. No. 26565/05, Council of Europe: European Court of Human Rights, 27 May 2008, para 43.
90 Ibid.
91 Sufi & Elmi v United Kingdom App no 8319/07 (ECtHR, 28 June 2011), para 283.
92 International Federation of Red Cross and Red Crescent Societies, ‘Introduction to the Guidelines for the domestic facilitation and regulation of international disaster relief and initial recovery assistance’ (Geneva 2011).
disaster there are too little resources to help all victims. The affected-State has to make hard choices in that context. It seems however the right choice to supply help to the most
vulnerable people in society. Some States don’t and make other choices. Those States might not supply help to members of a particular social group. It misuses the natural disaster to target an already marginalized group.
The IDRL-guidelines are rather silent on the discussed opportunity a natural disaster offers to discriminate between groups in the context of a natural disaster. Article 3 (3) might however offer an opening to build a case. The article recalls that affected-States have the sovereign right to coordinate, regulate and monitor disaster relief and recovery assistance provided by assisting actors on their territory, consistent with international law. Because the State has to act in consistency with International law, it cannot violate International Human Rights law. When a State would purposively deny people their basic needs, it would violate some socio-economic rights. Consequently a State which withhold basic needs it context of a natural disaster does not act in accordance with International law and article 3 (3) of the IDRL guidelines.
The ILC did also discuss the rights and duties of States in their responses to natural
disasters.94 Although there was much debate on much of many issues, the parties agreed that
all states have an obligation to act in a neutral manner in responses to natural disasters.95
States may not discriminate between people or groups of people in their response to a natural disaster. This concept of neutrality is mostly developed in International Humanitarian law. The principle can be found in many International soft and hard law instruments. In resolution 46/182 of 19 December 1991 the UN’s General Assembly has for example confirmed that: ‘’Humanitarian assistance must be provided in accordance with the principles of humanity, neutrality and impartiality." Although Humanitarian Law does only apply in the context of war/armed conflict, the principle of neutrality seems to translate quite easy to the context of disaster relief. Both war/armed conflicts and natural disasters create victims. These victims should receive their basic needs, no matter what their nationality or ethnicity is.
94 Report of the International Law Commission No. 10 (A/65/10), Sixty-second session (3 May–4 June and 5 July–6 August 2010), para 303.
According to UNHCR discriminating and marginalizing acts in the context of natural disasters may constitute an act of persecution.96 UNHCR is aware of the opportunity a
natural disaster offers to persecute certain groups or individuals. It stated that: ‘’The Convention as well as UNHCR’s mandate, would, for example, be applicable in situations where the victims of natural disasters flee because their government has consciously withheld or obstructed assistance in order to punish or marginalize them on one of the five grounds, although such cases are likely to be few.’’97
Case-Law
The tribunal in AF (Kiribati) did actually discuss a persecution claim in the context of a natural disaster. It referred to extensive reports which show that the recovery needs of marginalised groups are in practice often not met.98 When this is a result of well-considered
acts of the State, socio- economics rights might be violated. The tribunal stated that natural disasters and environmental degradation can have an adverse effect on the standard of living of person living in the affected areas.99 It than put its attention to the Right to an Adequate
Standard of Living of article 11 ISESCR, which also includes the Right to Food. The tribunal referred to100 General Comment no 12 in which the Committee on Economic, Social and
Cultural Rights stated that: ‘’States have a core obligation to take the necessary action to mitigate and alleviate hunger… even in times of natural or other disasters’’.101
The tribunal translated this core obligation to a threshold which would apply to determine whether a person has a well-founded fear of being persecuted. According to the tribunal a finding of being persecuted should be permitted when an individual faces the real risk of starvation (applying both the Right to Life and the Right to Food).102 When a State denies an
individual any food in the aftermath of a natural disaster, it is not unlikely that the individual will die. The threshold in such a scenario would be reached. The finding that a State’s denial 96 UN High Commissioner for Refugees (UNHCR), ‘Forced Displacement in the Context of Climate Change’ Challenges for States under International Law (20 May 2009).
97 Ibid, page 9.
98 AF (Kiribati) [2013] NZIPT 800413, para 57.
99 Ibid, para 63. 100 Ibid.
101 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment 12: The Right to Adequate Food (Art 11 of the Covenant), (12 may 1999).
102 AF (Kiribati) [2013] NZIPT 800413, para 68. The tribunal referred to Refugee Appeal NO 74665 (7 July 2004) in this paragraph.
of food would constitute persecution when a person would face the real starvation might not be surprising for those familiar with the UNHCR guidelines. The UHCHR stated that a threat to life would always constitute an persecution. One could alternatively argue that a violation of the Right to Food would be serious when the violation would lead to a real risk of
starvation. This argument could however be opposed based on the idea that the seriousness of a violation has to be assessed based on the nature of the act or omission and not based on the result (starvation) which is caused by the act or omission.
The idea that only those who would face real starvation would be persecuted should be criticized. We have to bear in mind that the real test with regard to persecution is whether an individual will be persecuted when returned to his Country of Origin. The main question in this context would be: can the individual who had no access to basic needs as a result of acts attributable to the State still trust that State to offer him protection? That answer could very well be negative. The State has withhold basic needs based on political or discriminatory motives. It is not unlikely that the State will conduct more repressive act based on these same motives towards the individual when he would get returned to that State. Consequently it can be argued that in such a situation there has been a breakdown in the relationship between the individual and the State. A protection claim in another State might then be successful. Civil and political rights are also violated in the context of natural disasters. The disaster relief might become politicized. The State might infringe the civil and political rights of people involved in the disaster relief who hold unfavourable political views. Most often the State had already made it difficult for these people to enjoy their rights. The natural disaster than forms the context in which these civil and political rights are infringed in an
unacceptable way. People might get arrested and detained to be silenced. These acts attributable to the State do clearly constitute persecution
An example in which civil and political rights are infringed in the context of a natural disaster, would be the situation in Burma after the Cyclone Nargis hit the country in 2008.103
This cyclone created enormous damage to the environment and the already vulnerable citizens of Birma. The cyclone did lead to the loss of approximately 138.000 life’s.104 Burma
103 Refugee Appeal No. 76374, No. 76374, New Zealand: Refugee Status Appeals Authority, 28 October 2009.
104 Total number of victims (not only in Burma) Source: Swiss Reinsurance Company Ltd (Peter Zimmerli), ‘Natural catastrophes and man-made disasters in 2008: North America and Asia suffer heavy losses’, (21 January 2009).
did at the time already have a long track record of human right violations. According to the Assistance Association for Political Prisoners 2123 political prisoners were behind bars in Burma in 2008.105 These violations went on after Cyclone Nargis created its damage. Human
Rights Watch reported on the 8 of june 2009 that: "In June 2008 alone, Human Rights Watch believes that 22 people were arrested for activities related to assisting victims of the cyclone, in many cases because they reached out to the international community or publicly criticized the SPDC's performance. The most prominent of these is renowned Burmese comedian and activist Zargana, but many others, including former political prisoners, used the brief opening of freedom to help their countrymen’’.106
One of the targeted people managed to cross the border of New-Zealand in which she filled a claim to be recognized as a refugee. The appellant was involved in disaster-relief work in Burma.107 She was linked to an opposition party which used donations by foreigners to help
victims of Nargis. She would get prosecuted because of her involved in in the disaster relief on account of the opposition party when she would return to Burma. The Court determined that she had a well-founded fear of being persecuted and recognized her as a refugee.
The State does not accept foreign aid
International Law
The duty for States to co-operate can be found in the UN-Charter. Article 1 (3) proclaims one of the purposes to be 108: ‘’To achieve international co-operation in solving international
problems of an economic, social, cultural, or humanitarian character,…..’’. Article 56 obliges States to act joint and separately for the realization of human rights as well as economic progress and development. It might very well be possible that Socio-Economic rights can in the context of natural disasters not be realized. These rights are enshrined in the International Covenant on Economic, Social and Cultural rights (ICESCR). Article 2 (1) ICESCR emphasizes the duty to co-operate to realize Socio-Economic rights. The monitoring 105 Assistance Association for Political Prisoners, ‘List of Political Prisoners in Burma in 2008’,
http://aappb.org/prisoners1.html last accessed 16-7-2018.
106 Human Rights Watch, ‘Burma’s forgotten prisoners’ (16 September 2009).
107 Refugee Appeal No. 76374, No. 76374, New Zealand: Refugee Status Appeals Authority (28 October 2009), para 40.
body to ICESCR, the Committee on Economic, Social and Cultural rights has in its General Comments also emphasized the duty to co-operate. With regard to the response to natural disaster it asserted in General Comment 12 that States have a joint and individual
responsibility to cooperate in providing disaster relief and humanitarian assistance in the times of emergency, including assistance to refugees and internally displaced persons.109
The ILC did also discuss the duty to cooperate between affected and non-affected States in response to a natural disaster. The outcome of that discussion can be found in the Draft Articles on the Protection of Persons in the Event of Disasters. These draft articles should as such still considered to be soft-law. The articles offer however quite specific obligations for States and are therefore worth looking at. I will make some observations.
It is clear that the affected-State has the primary role in the direction, control, coordination and supervision of such relief assistance.110 That primary responsibility does not exclude the
possibility that foreign States could offer assistance. According to article 7 States shall (as appropriate) cooperate among themselves, with the UN, Red Cross and other actors. This Article 7 offers a relatively soft obligation for States to cooperate. Article 11 and 12 are however much more demanding. Article 11 expresses that States have the duty to seek assistance when a disaster manifestly exceeds the national response capacity. When a State does not seek external assistance when it should the suffering of individuals would to some extent be attributable to the State. The State could have helped their citizens but chose not to do so. The result of that decision is that people can most likely not provide for their basic needs, which does most likely translates into a violation of the right to an adequate standard of living (11 ICESCR).
Article 12 (2) demands States to give due consideration to a request of another State or (International) Organization to offer external assistance. Article 12 (2) does however not demand States to accept all foreign aid. Affected States could have perfectly legitimated reasons not to accept the conditions attached to aid offered by foreign States, International Organizations or NGO’s. Affected-States do also not have to accept foreign aid when a third
109 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment 12: The Right to Adequate Food (Art 11 of the Covenant), (12 may 1999).
110 Draft articles on the protection of persons in the event of disasters, Yearbook of the International Law Commission, 2016, vol. II, Part Two 2016, article 10 (2).
