NYU LAW SCHOOL WEB: ENVIRONMENTAL LAW JOURNAL

© New York University Environmental Law Journal, 1998
Symposium on Endangered Species Act
ENVIRONMENTAL REFUGEES: MEETING THE REQUIREMENTS OF THE REFUGEE DEFINITION
 Jessica B. Cooper a1
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Introduction: Limitations of the Refugee Definition

     A refugee is any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. 1
     Set forth at the 1951 United Nations Convention Relating to the Status of Refugees ("Refugee Convention"), this legal definition of "refugee" remains the functional core of international refugee jurisprudence. 2 The 1951 definition continues to guide the *481 determination of who qualifies for refugee status today. For persons who meet this definition and qualify for refugee status, the Refugee Convention provides specific and extensive legal protections. 3 These protections prohibit the forced return of refugees to the homelands from which they flee 4 and allow refugees to resettle and establish new lives 5 in host countries. 6 Typically, *482 these protections are granted to refugees even if they violated the provisions of the receiving nation's immigration laws in the course of their migration. 7

     Unfortunately, the refugee definition is a product of its time. In 1951, the United Nations conceived of refugee flow as a European phenomenon. 8 At that time, the predominant source of refugees was war-ravaged Europe. Not surprisingly, the definition that issued forth from that era reflected Western notions of rights and needs extolled after the persecution of the Second World War. 9 But this definition has now become dangerously limited. As the number of refugees worldwide increases at an alarmingly steep pace, 10 governments are less able to protect these persons effectively. 11

     While the general public may assume that anyone can easily achieve refugee status, this is not the case. In reality, the 1951 definitional prerequisites for "refugee" status create a narrow legal class and keep the numbers of persons who can become a refugee to a corresponding minimum. Two principal elements compose the refugee definition. The first is the "persecution" requirement. 12 "Persecution" as required by the refugee definition has been interpreted strictly to mean "an act of government against individuals." 13 Consequently, millions of people forced to flee their countries to escape a myriad of intolerable conditions *483 are not recognized as victims of persecution. 14 The second limiting element of the refugee definition is the "for reasons of" requirement, which lists five officially recognized bases of persecution from which people may legitimately flee: race, religion, nationality, membership of a particular social group, or political opinion. 15 People forced to flee their countries today on account of generalized conditions of instability are not recognized as fleeing for any of the official reasons. Thus, only a person whose flight is caused by (1) persecution that (2) falls into one of the five expressly enumerated categories can qualify for refugee status. Both components 16 of the 1951 refugee definition, in effect, act to exclude vast numbers of today's fleeing people from the protections of the refugee system. 17

     Many of the refuge-seekers excluded by the 1951 refugee definition are people who are forced to migrate because of environmental deterioration. 18 The popular name for these people is *484 "environmental refugees." 19 Migration in response to environmental degradation is fast becoming the most pervasive and problematic form of forced migration to occur in the twentieth century. 20 The number of people seeking refuge from environmental degradation is growing more rapidly than other refuge-seeking groups. 21 The present estimate of environmental refugees *485 is 25 million, or one out of every 225 people worldwide. 22 The numbers

     could readily swell to 50 million by the year 2010; to many more by 2025; and if global warming starts to make itself felt conclusively, the ultimate total could surge way beyond 100 million. Whereas the present 25 million environmental refugees make up 0.4 percent of the world's population, a total of just 100 million in the year 2050 . . . would amount to a full 1 percent of the almost 10 billion people projected to be on Earth. 23

     Some predict that by early next century environmental refugees may outnumber traditional refugees several times over. 24

     While people have fled in large numbers for environmental reasons in the past, 25 the present condition of the world is altogether different. Environmental degradation is occurring so rapidly that forests will soon disappear, topsoil will quickly be eroded, water resources will dry up, and land shortages and overuse will be exacerbated by unsustainable population growth in just a few years. 26 Environmental degradation has already generated 25 million environmental refugees, 27 and this number will continue to increase rapidly. "Such large numbers of people on the move will constitute a unique experience for humankind." 28

     The preponderance of contemporary human outpouring consists of persons seeking to escape the deteriorating environments of developing countries, 29 but the surge in environmental refugees will soon outpace the ability of the developing world to cope with them. 30 Developed countries will soon feel the effects *486 of this problem. No host country will be able to escape the effects of the growing numbers of environmental refugees for much longer. 31 The sheer quantity of people fleeing from environmental degradation overwhelms most efforts to ignore or control the influx into countries, 32 and countries will not be able to seal off their borders from these refugees no matter how much they may wish to do so. 33

     Only with full international cooperation will the environmental refugee crisis be mitigated. 34 With environmental refugees excluded from the 1951 definition, however, the primary mechanism enabling countries to protect refugees is rendered useless.

     In addressing this complex issue, the purpose of this Note is twofold. Primarily, it aims to prove that environmental refugees already meet the requirements of the 1951 refugee definition and that they are entitled to the protections of official refugee status. Secondarily, this Note argues that all nations signatory to the Refugee Convention should be obliged to offer protections to this new refugee class.

     Part I of this Note begins by considering ways to alleviate the growing environmental refugee burden. Starting with prevention, this Section explains why preventing the creation of more environmental refugees, even if possible, would be of limited utility. Part I then discusses the textual expansion of the traditional refugee definition, either through a human rights analysis or on the basis of regional needs. The Part ends with a discussion of the many obstacles to expanding the 1951 refugee definition.

     Part II argues that environmental refugees already fit within the 1951 definition. Using examples of environmental crises to demonstrate that governments are responsible for environmental degradation and its resulting populations of environmental refugees, this Part argues that government-induced environmental *487 degradation is a form of persecution. Part II also argues that environmental refugees meet the "for reasons of" requirement of the refugee definition, since they are persecuted for reasons of their membership in a social group of persons who are politically powerless to protect their environment.

     This Note concludes that environmental refugees are entitled to official refugee status.


I Alleviating the Environmental Refugee Crisis--Potential Approaches and Their Weaknesses

A. Prevention

     An ounce of prevention may be worth a pound of cure, but preventing the creation of environmental refugees in the first place may not be a viable policy response to this dilemma. While it appears that maintaining conditions of environmental security would reduce, if not eliminate, people's need to seek refuge, 35 achieving genuine environmental security would be very complex. When a person is forced to migrate, there are often myriad causes, including poverty, land deterioration, disease, flooding and other natural disasters, and ambient pollution. Preventing environmental refugees would require the elimination of environmental degradation in all its varied forms. 36 Eradicating pollution and promoting sustainable development 37 will be very difficult tasks. 38 Even with immediate action, the current increase in the number of environmental refugees is unlikely to be reversed for some time. "[T]he processes that generate environmental refugees have worked up too much momentum to be *488 slowed, let alone halted, in short order." 39 Thus, while prevention may be an ideal solution to the problem of environmental refugees, it is only a distant prospect upon which refugees cannot rely.

B. Textual Modification of the Present Refugee Definition

     Until the environmental degradation causing the environmental refugee problem is counteracted, an extensive effort must be made to handle the refugees who already have been and prospectively will be pushed out of their native countries due to environmental reasons. 40 Adjusting the traditional 1951 definition of "refugee" to encompass environmentally displaced people would seem to be an obvious component of that effort. If environmental refugees are officially entitled to refugee status, the burden of protecting them could be distributed more evenly among the signatory nations to the Refugee Convention. 41

1. Expanding the Refugee Definition Along Human Rights Lines Expanding the established refugee definition to encompass environmental refugees may require no more than an easy extension of human rights policy. Since the 1951 refugee definition is heavily imbued with human rights notions, 42 and environmental refugees are no less entitled to their basic rights and needs than their traditional counterparts, 43 using human rights concepts to expand the refugee definition has natural appeal.

*489 a. Inextricable Histories: Environmental Human Rights Before the Refugee Convention

     Contemporary human rights norms are based primarily upon three international instruments: 44 the Universal Declaration of Human Rights ("Universal Declaration"), 45 the International Covenant on Civil and Political Rights ("Political Covenant"), 46 and the International Covenant on Economic, Social and Cultural Rights ("Economic Covenant"). 47 Each of these documents is founded on the idea that all people deserve equal protection of their human rights. 48

     Adopted in 1948 by the United Nations, the Universal Declaration was the first of these three international human rights instruments. The Universal Declaration set forth human rights principles which forty-eight members 49 of the United Nations agreed to recognize. Never before had so many nations of the world acted in concert 50 to proclaim so broad a range of human *490 rights and freedoms. 51 This universal focus of attention on human rights was entirely unprecedented and it substantially influenced the governments of the world. 52

     The Universal Declaration set the political stage for the Refugee Convention. 53 The Refugee Convention reciprocally relied on the human rights foundation laid by the Universal Declaration. The Preamble to the Refugee Convention begins: "[T]he Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly ha[s] affirmed the principle that human beings shall enjoy fundamental rights and freedoms . . . ." 54 Indeed, the Refugee Convention incorporated human rights ideas from the Universal Declaration into its very definition of "refugee." The language of the refugee definition 55 gives attention to five freedoms: freedom from persecution for reasons of (1) race, (2) religion, (3) nationality, (4) membership of a particular social group, and (5) political opinion. Not surprisingly, these five freedoms are conceptually contained within Articles 2, 18, 20, and 19 of the Universal Declaration, whish set forth the rights to freedom from discrimination, freedom of religion, freedom*491 of association, and freedom of expression, respectively. 56 The 1951 definition clearly understands that refugee status results from the denial of human rights. 57 In addition, the Refugee Convention mimics the Universal Declaration's assertion that the ability to seek safety from persecution is crucial. Article 14(1) of the Universal Declaration specifically declares that "[e]veryone has the right to seek and to enjoy in other countries asylum from persecution." 58 Occurring just three years later, the 1951 Refugee Convention benefited from the wide acceptance of the Universal Declaration and its recognition of the human right to seek safety. 59

     But while the 1951 Refugee Convention was premised on the human right to safety from persecution as identified in the *492 Universal Declaration, it failed to incorporate the Universal Declaration's broader conception of human rights and freedoms into its definition of "refugee." For example, Article 3 of the Universal Declaration proclaims that: "Everyone has the right to life, liberty and security of person." 60 Article 22 recognizes that:

     Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co- operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity . . . .; 61

     and Article 25 declares that:

     Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness . . ., or other lack of livelihood in circumstances beyond his control. 62

     The comprehensive language of these provisions can be interpreted as setting broad environmental standards and creating an implicit human right to freedom from life-threatening 63 and otherwise intolerable environmental conditions. 64

     As articulated in the Universal Declaration, this human right to freedom from intolerable environmental degradation ought to command protection equivalent to the rights of freedom from discrimination, freedom of religion, freedom of association, and freedom of expression. Yet, arbitrarily, the 1951 refugee definition has created a situation in which violations of the latter human rights systematically generate "refugees" while violations of the former do not. More than anything else, this inconsistent result opens to criticism the Refugee Convention's definition as *493 totally unresponsive to human rights violations against environmentally displaced peoples.

b. Further Evidence of a Human Right to a Tolerable Environment

     The refugee definition's failure to acknowledge and protect the human right to a tolerable environment is underscored by the contents of the two other major human rights documents, the Political and Economic Covenants. 65 Drafted in 1966, these two Covenants expanded on the human rights principles recognized by the Universal Declaration. Both the Political and Economic Covenants expressly state that there is "[an] inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources," 66 and that "[i]n no case may a people be deprived of its own means of subsistence." 67 The Economic Covenant further provides that to recognize

     the fundamental right of everyone to be free from hunger, . . . measures . . . are needed:

     To improve methods of production, conservation and distribution of food . . . by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources . . . 68

     and that to recognize

     the right of everyone to the enjoyment of the highest attainable standard of physical and mental health,

     The steps to be taken . . . shall include those necessary for:

     . . .

     The improvement of all aspects of environmental and industrial hygiene . . . . 69

     These provisions from the Political and Economic Covenants reveal that merely fifteen years after the Refugee Convention, the once amorphous concept of environment-linked human rights *494 had gained definition and was fast emerging. 70 A growing number of post-1966 international environmental instruments evidence the continuing development of the right to a healthy and safe environment. 71 As environmental human rights continue to unfold, the failure of the 1951 refugee definition to extend refugee status to persons forced to migrate on account of intolerable environmental conditions becomes a more obvious and unacceptable omission.

     A seemingly easy solution to this problem would be to incorporate further the provisions of these human rights instruments into an expanded version of the refugee definition, thus enabling environmental refugees to obtain refugee status. A proposed expansion of the refugee definition might read: any person who owing (1) to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or (2) to degraded environmental conditions threatening his life, health, means of subsistence, or use of natural resources, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. Such a definition would incorporate human rights principles into the refugee definition, thus providing protection for environmental refugees.

*495 c. Resistance to a Human Rights Expansion of the Refugee Definition

     While expanding the refugee definition along human rights lines is feasible, it would by no means be an easy task. 72 The major human rights instruments contain little explicit environmental language, and the drafters clearly did not foresee the potential of environmental degradation or the consequent necessity for human rights norms to fully embrace environmental considerations. 73 The reality is that the three major human rights instruments predate the current awareness and urgency of environmental concerns. 74 Only through interpretation can environmental human rights be definitively located within the Universal Declaration and the Political and Economic Covenants. There is bound to be universal resistance to any attempt to expand the refugee definition on so limited a premise. 75

2. Regional Expansions of the Refugee Definition

     As an alternative to using human rights to expand the refugee definition, regional agreements can be drafted to alleviate the environmental refugee problem. The 1951 refugee definition has been expanded in specific instances. 76 The two best known *496 expansions are found in the 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa ("OAU Convention") 77 and the 1984 Cartagena Declaration on Refugees ("Cartagena Declaration"). 78 In both cases, governmental organizations adopted a broadened definition of "refugee" to accommodate regional needs not covered by the traditional definition. The specific circumstances underlying these definitional innovations help explain why the governments involved agreed to such expansions.

a. The Definitional Expansions in Context

     The OAU Convention expanded its working definition of "refugee" primarily to assist mass outflows of people displaced by wars of independence throughout the African states. The shared experience of struggling for liberation made African solidarity a moral imperative. 79 African states were prepared to help each other and were willing to accept the additional obligations resulting from a broadened refugee definition. 80 The OAU Convention definition of "refugee" restates the Refugee Convention definition 81 and then adds a second paragraph:

     The term refugee shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing the 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. 82

     *497 The Cartagena Declaration also recognized the need for heightened regional protection of refugees--this time in Central America. 83 It expanded the working definition of "refugee" specifically to assist the more than two million refugees generated by ten years of armed conflict and generalized violence in the region. 84 Deliberately patterned after the OAU Convention, 85 the Cartagena Declaration proposed a definition for "refugee" that:

     in addition to containing the elements of the 1951 Convention . . . and the 1967 Protocol . . . includes among refugees 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 the public order. 86

     Both of these expanded definitions implicitly include environmental refugees. When environmental degradation causes people to flee, they are seeking refuge from a "serious disturbance of the public order." However, neither of these definitions was expanded

     in order to accommodate environmental refugees per se. 87 Environmental refugees who have obtained refugee status under the expanded definitions are no more than incidental beneficiaries.

     In truth, the protection provided to refugees under the expanded definitions of the OAU Convention and the Cartagena Declaration does not sufficiently aid environmental refugees for the following reasons. Environmental refugees seek refuge from environments that will no longer support them. 88 They need the full-blown protection of official refugee status. Only this will provide them with the right to resettle in another country and the *498 opportunity to establish a new life there. 89 Without this complete protection, environmental refugees are at great risk of not being able to survive. 90 Neither the OAU Convention nor the Cartagena Declaration guarantees such full protection to the refuge-seekers who meet only the expanded definitions.

i. The OAU Convention Definition

     Under the system set up by the OAU Convention, refugees meeting only the additional definitional requirements--and not the requirements set out under the 1951 Refugee Convention--receive only temporary protection. 91 While these refugees are not forced to return to their home states, they are not allowed to resettle in the receiving state either. 92 The OAU Convention system developed this way because of the unique refugee flow pattern it was created to address. African refugees spawned by wars of independence typically required only temporary protection. As liberation conflicts were resolved, and colonial rule came to an end within individual states, displaced persons were able to return home. 93 Permanent protection, therefore, was not needed.

     However, this is not the case with environmental refugees. Environmental refugees seek refuge from severe environmental degradation. When they flee their homelands, it is with a presumption of permanence and little hope of return. 94 Environmental refugees need prolonged protection. The temporary protection provided by the OAU Convention is simply not adequate to meet their long-term needs.

*499 ii. The Cartagena Declaration Definition

     Under the Cartagena Declaration system, refugees meeting only the additional definitional requirements might receive even less protection than that afforded by the OAU Convention. This is because the expanded refugee definition of the Cartagena Declaration is not officially binding on any Central American governments. It is purely aspirational in character. 95

     Environmental refugees need more reliable and certain protection than this. Environmental refugees urgently fleeing their homelands cannot wait for potential host countries to "feel like" receiving additional refuge-seekers. Environmental refugees will only be sufficiently protected by a system that guarantees them help. The aspirational language of the Cartagena Declaration simply cannot adequately assure them of the aid they require.

     Neither the expanded definition of the OAU Convention nor the expanded definition of the Cartagena Declaration are able to provide environmental refugees with the protection that they need to survive. Nevertheless, efforts like these are clearly steps in the right direction. Both documents represent a growing recognition of a need to expand the traditional 1951 refugee definition. 96

3. General Resistance to Expanding the Refugee Definition

     Two methods by which the 1951 refugee definition might be expanded have been explored: incorporating a human right to a tolerable environment into the refugee definition 97 and including persons displaced by a "serious disturbance of the public order" within the refugee definition. 98 However, it is unlikely that a textual expansion of the 1951 refugee definition will be made on a global scale, no matter what the method, due to an enormous resistance to any such expansion.

     One obstacle to expanding the refugee definition is that the international definition of refugee has not changed in the last forty-six years and, with every passing year, it becomes less likely *500 that it will. 99 For over four and a half decades, the legal framework of the Refugee System has developed around the 1951 refugee definition. Expanding this definitional core would create shockwaves on a global scale. The forces of legislative entrenchment, favoring the status quo, would fight such change.

     A second source of resistance to expansion of the refugee definition is the unwillingness of both national governments and national populations to accept additional refugees. National governments will resist expansion of the refugee definition because ultimately it is those governments that have to bear the burden of providing for any new refugee populations. 100 The refugee influx is a great problem for the national governments of receiving countries, many of which are not equipped to provide protection for the expanding numbers of refugees.

     Exacerbating the reluctance of national governments to accept additional refugees is the strong anti-refugee sentiment among the people of receiving countries. Popular attitude toward refugees has always embodied deep conflict. On the one hand, people recognize that refugees deserve sympathy and respect since they are victims of government persecution fleeing from familiar territory. 101 The resourcefulness, motivation, and determination that refugees display in escaping their homelands is often remarkable. 102 People around the world understand that refugees represent a failure on the part of society to care for its own. 103 Thus, many people react viscerally to the plight of refugees and feel that refugees are entitled to some form of help. 104

     Reflecting this altruistic view, the international refugee system provides persons who obtain official refugee status with certain privileges. But it is exactly these attendant privileges, especially the right to resettle indefinitely, that generate resistance *501 to expanding the 1951 definition. The privileges of refugee status provide immigrants with a great incentive to fake their fear of persecution; usually, they have nothing to lose by trying. The populations of host nations are inevitably suspicious that unworthy persons are wrongfully trying to claim refugee status and reap the benefits their countries offer. And so, despite an abstract recognition that a humanitarian obligation to assist refugees exists, there is always strong popular reaction against acting on it.

     Moreover, refugees bring alien cultures, customs, living habits, and disease to a receiving country. They are often unwelcome wherever they go. As the number of refugees continues to increase, so too does this uncharitable sentiment. The perceived threat to national identity that refugees can pose often results in outbreaks of ethnic tension, public disorder, and even political upheaval. 105

     In response to the potential chaos of refugee inflow, the humanitarian impulses which once compelled a generous international response on the part of signatory nations are being pushed aside. 106 The definition set forth at the Refugee Convention is now being inversely manipulated to restrict the tide of refugees. The unwillingness of national governments and national populations to accept additional refugees creates the most powerful resistance to expansion of the refugee definition.


II Environmental Refugees Already Have a Place Within the 1951 Definition

     There is, however, a way for environmentally displaced persons to achieve refugee status without expanding the text of the 1951 refugee definition. The remainder of this Note will argue that the existing refugee definition already encompasses environmental refugees. This Part discusses some examples of environmental crises that have generated environmental refugees and demonstrates that the "persecution" and "for reasons of" requirements*502 of the 1951 refugee definition are, in fact, satisfied by environmental refugees.

A. Government Persecution of Environmental Refugees

     The term "environmental refugees" was developed to describe the recent phenomenon of persons forced to migrate on account of environmental degradation. It is widely acknowledged, however, that environmental factors are inseparable from other factors which generate refugees 107 and are seldom the sole cause of migration. The recognition that environmentally displaced persons flee because of their governments, as well as their environments, is the key to enabling environmental refugees to obtain refugee status. The "persecution" requirement of the refugee definition demands "an act of government against individuals." 108 It is government involvement in environmental crises that brings environmental refugees within the reach of current international refugee law and yields the strongest argument for stretching the 1951 definition to cover their situation.

     Studies of environmental disasters have exposed the role of government in both causing disasters, and in causing populations to be more vulnerable to them. 109 Disasters require decisions, and failure to decide or negligent decision-making on the part of a particular set of authorities is common in the face of environmental disaster. 110 Because authoritative decisions on the part of the government so often underlie environmental disasters, the refugees created by such disasters suffer a form of governmental persecution. 111 With governments playing so pertinent a role in the occurrence of environmental crises, refugees seeking refuge from the resulting environmental degradation are effectively seeking refuge from their governments as well.

*503 1. Examples of Environmental Crises

     Environmental crises that generate environmental refugees are typically placed into three broad categories: (1) long-term environmental degradation, including global warming, deforestation, land erosion, salinity, siltation, waterlogging, and desertification; 112 (2) sudden natural environmental disruptions, including earthquakes, droughts, floods, hurricanes, monsoons, tidal waves, tornadoes, and volcanic eruptions; 113 and (3) accidents, including both industrial and chemical disasters. 114 Countless examples within each category have been caused by government negligence or inaction.

     There is an important connection between long-term environmental degradation and sudden natural environmental disruptions. Long-term degradation, while devastating in itself, inhibits the ability of ecosystems to roll with nature's punches. The impact of sudden environmental natural disruptions on a given area, while sometimes capable of independently forcing migration, is exponentially worsened when the area is also experiencing long-term degradation. The result is that extremes in natural weather patterns, largely survived and endured throughout the millennia, are increasingly yielding catastrophes on a scale seldom seen before. 115 As long-term degradation continues to progress, sudden natural environmental disruptions are increasing both in number and in terms of people affected every year. 116 For purposes of this analysis, therefore, long-term environmental degradation and sudden natural environmental disruptions will be discussed as inextricably tied to one another.

     This Part first discusses two examples of long-term degradation aggravated by sudden natural disruptions. The Part then moves on to an environmental crisis which exemplifies a modern industrial accident. In all three cases, government action or inaction *504 caused the environmental crisis and the resulting wave of environmental refugees.

a. The African Sahel Desertification

     The desertification of the African Sahel provides a powerful example of long- term environmental degradation and the ability of such environmental degradation to generate environmental refugees. 117 The African Sahel experiences some of the worst human-made environmental problems in the developing world. 118 Fifty percent of the people threatened by severe desertification worldwide are found in this area. 119

     The African Sahel is a belt of semi-arid land running across the southern boundary of the Sahara desert, from Mauritania to Somalia. 120 Continual population growth in the region has forced the people of the Sahel to overuse their land for decades. 121 Chronically degraded by excessive cultivation and grazing, the land in the area has lost its ability to retain adequate moisture. 122 The Sahel's annual rains typically come in torrential bursts during a few months, but these rains do little to rehydrate the region when the soil has no capacity to hold water. 123 Worsening an already poor environmental situation, the Sahel is also the target of an extremely destructive sudden natural environmental disruption: recurrent drought. The region experienced two severe droughts, first from 1968 to 1973 and then again from 1982 to 1984, 124 during which little or no precipitation collected. During these periods of drought, the nomadic farmers of the Sahel moved further and further southward, away from the desert, in search of less sparse areas, stripping the land bare as they *505 went. 125 Subsistence farmers were similarly forced to move onto fragile land, further overworking the soil and exacerbating the problem. 126 The Sahara's southern border of protective vegetation was ultimately destroyed. No barrier was left intact to separate the desert from arable land. 127

     Both droughts drastically compounded the existing land deterioration. "Overcultivation and overgrazing weaken the land, allowing no margin when drought arrives." 128 This dire combination of land degradation and drought resulted in the rapid southward expansion of the Sahara. 129 Today, the African Sahel is experiencing desertification at an alarming pace. 130

     As the desert continues to encroach upon the Sahel, the region becomes ever more susceptible to sudden natural environmental disruptions. Rainfall in the Sahel never returned to pre-1968 levels, 131 and drought is an ever present threat. Through long-term environmental degradation and multiple droughts, the ability of the region to withstand further drought is critically reduced. 132

     The environmental conditions of the Sahel have become intolerable for its human inhabitants. Land degradation has become so significant and widespread that, together with droughts, it is the prime reason why millions of sub- Saharan people have faced an almost constant threat of famine and starvation since 1985. 133 Nearly continuous political conflict and instability in this *506 area since 1960 have added to the gravity of the situation. 134 Governmental upheaval and the number of wars in the area 135 both exacerbate poor environmental conditions, 136 and distract governments from responding to the needs of its people.

     The governments of the Sahel region have made little effort to improve their citizens' worsening environmental conditions. They could have enacted policies and programs to cut population growth, to improve agricultural techniques, or to heighten food production. 137 Any of these steps might have prevented the Sahel region from becoming trapped in the devastating cycle of desertification, drought, and famine. The Sahelian governments failed to provide aid to their needy populations while the people struggled against deteriorating environmental conditions that left them without farmable land and without food. 138 In so doing, the governments contributed to the plight of their people.

     Without government intervention or help, the people of the Sahel region had to rely upon themselves to survive. For hundreds of thousands of Sahel Africans, that survival instinct led them to flee their parched lands and their neglectful governments. 139 The Ivory Coast, with its relatively stable and developed economy, became the country of destination for many. It took in 1.4 million Sahelian refugees between 1968 and 1973. 140 During the 1980's drought, twenty percent of Mauritania's population--or 400,000 people--and seventeen percent of Niger's population--or almost 1.5 million people--became environmental refugees. 141 It is estimated that ten million people in the *507 Sahel were forced off their land in that decade. 142 Quite simply, they had to abandon their homes to look for land that could sustain them or die. 143 The Sahel has generated some of the largest numbers of environmental refugees in proportion to its total population. 144 If recent trends persist, the year 2000 may see as many as fifty million Sub- Saharan Africans seeking refuge in neighboring countries. 145

     The governments of the Sahel were negligent in their failure to meet the basic survival needs of their people. They did little to halt the environmental degradation of the region and little to provide adequate food to combat the resulting famine. 146 But for the governments' inaction, the Sahel would not be perpetually on the brink of disaster today. Instead, the severe environmental degradation of the region has forced millions of Sahelians to flee in search of an environment that can sustain them.

     They have become environmental refugees fleeing a negligent government that has failed to meet their basic needs.

b. Global Warming and Sea Level Rise

     As far back as 1957, 147 scientists realized that human activities 148 were overloading the Earth's atmosphere with carbon dioxide and other gases. 149 Within the past twenty-five years, the *508 burning of fossil fuels and the destruction of forests have been releasing excessive amounts of carbon dioxide and other greenhouse gases (GHGs) into the air. 150 The increasing concentration of carbon dioxide is causing a significant change in the composition of the Earth's atmosphere, resulting in a significant rise in the Earth's temperature. This phenomenon is known as global warming or the Greenhouse Effect. 151 At least one study has shown that global temperatures have risen 1.3 degrees Fahrenheit since 1900. 152 Scientists generally agree that the Earth's average global temperatures will rise between three and eight degrees Fahrenheit in the next 60 years. 153 This may not sound like a dramatic change, but the Earth has not experienced so rapid a shift in climate for the past 10,000 years. 154 In addition, the speed with which the climate will change will make it difficult for living species to evolve, migrate, or adapt to the new temperatures.

     Like other forms of long-term environmental degradation, global warming will aggravate sudden natural environmental disruptions. 155 The rise in temperature will increase the severity of hurricanes and the occurrence of devastating storm floods. 156 Monsoons may well become prolonged and more intense. 157 At the same time, such a temperature rise may increase the incidence *509 of severe drought. 158 These results alone could force fifty million people to migrate within the next fifty years. 159

     While land degradation is currently the most significant creator of environmental refugees, global warming will ultimately generate more environmental refugees than any other single environmental crisis. 160 The gravest effects of global warming on human migration will be triggered by a rise in sea level. 161 As the global temperature rises, so does the level of the oceans. The increased temperature causes thermal expansion of ocean waters 162 and melts glaciers, ice sheets, and polar ice caps. 163 Evidence suggests that within the last century sea levels have already risen between four and six inches. 164 As much as a three foot rise in sea levels is predicted to occur by the year 2100. 165

     So great a rise in sea level will have devastating implications. One- third of the world's current population lives within sixty kilometers of a coastline. 166 For countries like Egypt, India, Bangladesh, and China, where large populations reside on low-lying deltas, a three foot rise in sea level could turn hundreds of millions of people into environmental refugees. 167 It is presently estimated that twelve million people in Egypt, twenty million people in India, twenty-six million people in Bangladesh, and *510 seventy-three million people in China might be rendered homeless. 168 Island nations in the Caribbean, the Mediterranean, and the Pacific are equally at risk. 169 With a rise in sea level, inhabitants of these islands could find themselves entirely inundated, 170 resulting in an additional twenty-five million people seeking refuge. 171

     The potentially enormous number of environmental migrants resulting from the operation of the Greenhouse Effect, the heightening of sudden natural environmental disruptions, and the rise in sea level rise is sobering. National governments throughout the world are fully aware of these environmental problems and their probable effects. 172 Scientists and the media have been bombarding the global community with predictions of the effects of global warming since the problem was first grasped in the 1970s and 1980s. No government can remain oblivious to the gravity and urgency of the situation. Yet there is clear governmental resistance to effecting the change necessary to halt the emerging crisis.

     In June 1992, heads of state from over 100 nations convened at the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, Brazil, to discuss possible solutions to global warming, as well as other international environmental dilemmas. 173 The parties agreed upon the Framework Convention on Climate Change (FCCC), 174 which was *511 eventually signed by 154 countries and the European Union, and entered into force on March 21, 1994. 175 The FCCC established a procedure for future negotiations on climate change, but did not delineate any targets or timetables for the reduction of GHGs. While the FCCC was a major step forward in that countries agreed to work together to combat global warming, the document itself made no progress toward reducing the global emissions of greenhouse gases.

     Negotiations at UNCED were complicated by the fact that each country came to the Earth Summit with very different goals and desires. 176 Developing nations did not want to be forced to forego the same opportunities for industrial development that developed countries had already exploited, while developed countries did not want to make unilateral commitments to reduce GHG emissions if the developing nations would be permitted to pollute without limits. Organization of Petroleum Exporting Countries (OPEC) obviously did not want significant reductions in carbon dioxide emissions because of the future value of their oil and coal reserves. And the small island states, which are predominantly developing nations, pushed for strict controls on GHGs since even minimal sea level rise threatens their very existence. 177 These differing interests made negotiations at the Earth Summit very difficult and set a complex stage for future discussions.

     *512 Since the FCCC was signed, there have been three Conferences of the Parties (COPs). 178 All were convened with the hope of establishing targets and timetables for reducing greenhouse gas emissions, and all were less than successful. At the second COP, the parties agreed upon a mandate that required them to "set quantified limitation and reduction objectives within specified time frames." 179 At the most recent COP, the Kyoto Protocol was drafted, setting out differentiated targets and timetables for each country to follow. 180 To the dismay of many developed countries, however, the Protocol still failed to establish any concrete obligations on the part of developing nations. Many countries have threatened that they will not ratify the Protocol because of this inequity. 181

     While the history and development of the FCCC demonstrates that international attempts to reduce greenhouse gas emissions are being made, the results display a decided lack of *513 commitment. For decades, governments and scientists have accepted that climate change is occurring, but the nations of the world have still not taken concrete action to reverse the process. 182 Even if the Kyoto Protocol is ratified and followed, it would remain a weak compromise agreement that will not reduce emissions significantly. 183

     Governments are generally unwilling to curb their emissions of greenhouse gases because of the economic consequences. 184 Global warming and sea level rise provides an all too blatant example of government action and inaction causing long-term environmental degradation. Allowing the continued emission of high levels of carbon dioxide into the atmosphere is negligent government action; resisting the curtailment of such processes is harmful government inaction. Governments, collectively, must take significant steps to halt global warming. Only then will hundreds of millions of potential environmental refugees be spared the need to seek refuge.

     When people are forced to flee environments made uninhabitable by global warming, they are environmental refugees fleeing the "persecution" of their national governments. 185 If the *514 governments of the world continue their harmful actions and inactions, the environmental refugee crisis will assume unbearable proportions within the next century.

c. Chernobyl--An Industrial Accident

     The nuclear explosion at Chernobyl is a final example of government negligence and inaction leading to an environmental crisis and wide-scale environmental refugees. In the early morning on April 26, 1986, the fourth reactor at the Chernobyl nuclear power plant exploded, starting a protracted release of radiation into the environment. 186 The Soviet authorities remained silent. They failed to report the event or to take any kind of action in the critical first hours after the accident occurred. 187 Outside of the Soviet Union, the first sign that anything had happened was detected by Sweden on the afternoon of April 27. 188

     Automatic radiation measuring instruments at the Swedish National Defense Research Institute registered a marked rise in radiation levels in the air. Despite such data--and questions from surrounding countries--the Soviet authorities maintained their silence, refusing to acknowledge that a nuclear accident had occurred. More than thirty hours after the explosion, 189 and only after strong diplomatic pressure and world-wide news coverage, 190 the Soviet Government issued a brief press release conceding the occurrence of a nuclear accident.

     The Chernobyl disaster cannot be analyzed adequately without first understanding the importance of the nuclear energy industry to the Soviet Union. 191 By the 1980's, nuclear energy had become one of the key expansion areas of the Soviet Union's power industry. 192 The entire economic program for the future of the country hinged on the success of its civil nuclear power plants. 193 To Soviet leaders, the Chernobyl disaster threatened the fate of their country, and the less the Soviet Union revealed *515 to the outside world about the severity of the accident, the greater its chances of maintaining its reputation as a global power. 194

     The first hours following a nuclear accident are crucial to the execution of a successful evacuation. 195 However, the Soviet authorities delayed the evacuation process for forty hours after the accident occurred, increasing the risk of fatality for those affected by burns or radiation. 196 Within a month, thirty people had died from radiation poisoning, 197 all of them workers or firefighters at the Chernobyl station on the day of the explosion. While no one outside the plant died as rapidly, a total of 237 people suffered from acute radiation sickness caused by direct exposure immediately following the explosion 198 and over a hundred thousand people living within a 30 kilometer zone were exposed to dangerously high radiation levels before they were evacuated. 199 It may never be possible to count the total human cost of this accident because many of the medical problems will arise years, if not generations, after the event. 200

     The hot debris of the Chernobyl reactor ultimately covered an area of more than 5,000 square kilometers 201 with nearly 50 million curies of radionuclides, 202 making human life there nearly impossible. 203 When the Soviet authorities finally decided to evacuate its citizens from the areas surrounding the station, the removal occurred hastily and with little explanation to those who were uprooted. 204 The Soviet government eventually evacuated thousands of people, 205 many of whom will never return to their *516 homes. 206 A decade later, a thirty kilometer zone around Chernobyl remains largely uninhabited. With a half-life of 25,000 years, the radiation contamination of the area will effectively last forever. 207 The people whose lives were suddenly disrupted by the Chernobyl accident "could be called history's first major wave of environmental refugees" caused by an industrial accident. 208

     While failures within the fourth reactor of the plant technically caused the accident, the situation reached crisis proportions largely because of conditions outside the plant. The Soviet government's initial inaction, its failure to report the event, and its failure to evacuate its citizens added to the gravity of the disaster. Rarely has a regime so knowingly disregarded the true nature, magnitude, and danger of an event. 209 However, it was not only after the accident that the Soviet government put its citizens at environmental risk. It demonstrated great disregard for the environmental welfare of its people prior to the disaster as well.

     In the preparation of the fourth reactor at the Chernobyl plant, the Soviet government displayed a fundamental lack of concern for the long-term stability of its citizens' environment. The Chernobyl disaster resulted directly from the Soviet authorities' unbridled desire for nuclear power. In Soviet industry, completing a project ahead of schedule is a rare event and can bring enormous political rewards and benefits. 210 In response to pressure from government authorities, the fourth reactor was put into full commercial operation ahead of the official schedule, 211 prior to the successful completion of a sequence of planned safety *517 tests. 212 It is known now that the explosion at Chernobyl was the result of an experiment attempted on April 25, 1986, that was left incomplete years earlier during the fourth reactor's rushed safety testing. 213

     Both the political pressure to bypass nuclear reactor safety tests and the Soviet authorities' delayed response following the nuclear explosion illustrate that the priority of the bureaucratic state was the economic growth of the country and not the safety of its citizens. 214 Nuclear power is vital to the economic health and power of the Soviet Union. Therefore, knowledge of many problems within the nuclear power industry was suppressed at all costs, even that of a safe civilian population and a safe environment. 215

     There is no doubt that the action and inaction of the Soviet Government created and contributed to the Chernobyl accident. As summed up neatly in a joint statement made by three former Soviet Ambassadors to the United States, Yuli Vorontsov (Russia), Serguei Martynov (Belarus), and Yuri Shcherbak (Ukraine):

     The fault and responsibility for this infamous disaster must be laid at the feet of the leaders of the former Soviet *518 Union who, through their criminal disdain for the human needs and welfare of citizens, permitted this most devastating technogenic catastrophe. Its after effects--such as a sharp increase in mortality and morbidity figures first of all among children, the presence of dozens of thousands of environmental refugees, long-term contamination of soil and water, irreversible changes in the natural environment and ecosystems--will be felt for decades. 216

     It is important to note that the environmental refugees generated by the Chernobyl disaster mainly sought refuge within the borders of the Soviet Union. This fact corresponds with the pattern established by past industrial disasters: persons displaced by such accidents tend to relocate within their home countries, rather than flee across national borders. 217 However, the victims of Chernobyl were scattered widely across the Soviet Union 218 and, due to drastic political changes in the 1990s, the Soviet Union is no longer one united country. Were a similar accident to happen again within the newly disbanded Soviet states, it is certain that national borders would be breached by victims in their search for safety. 219

     The unfortunate reality is that the chances of a similar accident occurring in the near future are great. The majority of Soviet nuclear power plants are located near densely populated areas 220 and the Soviet states' reliance on nuclear electric power *519 today is greater than ever. 221 The Chernobyl disaster was not the first accident to occur at one of the Soviet nuclear installations 222 and it certainly will not be the last. 223

     The Soviet government contributed in large part to the Chernobyl disaster. Thousands of refugees were created as a result. In searching for an environment uncontaminated by radiation, these environmental refugees were effectively fleeing a government that first harmed them and then failed to help them.

2. Government Induced Environmental Degradation as Persecution

     The desertification of the African Sahel, the rise of sea level due to global warming, and the Chernobyl Nuclear Power Plant disaster are all examples of environmental crises that have generated environmental refugees in satisfaction of the "persecution" requirement for official refugee status under the 1951 Refugee *520 Convention. Persecution occurs when government action harms individuals. 224 In each of these cases, the government(s) knowingly harmed individuals by causing or contributing to the degradation of their environment. Environmental degradation harms individuals on a fundamental level. It makes them flee their homes in search of an inhabitable environment. It forces them to migrate to protect their very lives. 225 When governments knowingly induce environmental degradation and that degradation harms people by forcing them to migrate, a form of government persecution occurs.

     The governments of the Sahel persecute their people by worsening the degradation of the environment within the region. They choose not to take steps to prevent further desertification. The ongoing desertification within the region reliably demonstrates that the governments there have not made limiting environmental degradation their top priority. Because the governments are unwilling to garner their resources and halt the desert's progress, desertification continues to threaten the lives of Africans throughout the Sahel. As the governments knowingly continue to permit the lives of individual Africans to be threatened and harmed by the encroaching desert, government persecution occurs. 226

     Likewise, the governments of the developed world persecute millions of people by refusing to commit their collective resources to fight global warming. Effectively, the individuals who are at greatest risk of ultimate inundation from sea level rise are not receiving the assistance they need to protect their homes and homelands. As the governments of developed countries knowingly continue to cause global warming and expose individuals to the harm of sea level rise, government persecution occurs. 227

     The government of the Soviet Union also persecuted its people by causing the Chernobyl nuclear power plant explosion and in allowing the subsequent deterioration of its people's environment. In delaying safety measures both before and after the explosion, the Soviet Government prioritized its economy over the adequate protection of its citizens and their environment. The Soviet government knowingly chose to expose its people to environmental *521 harm. This choice constituted government persecution. 228

     In each of these environmental crises, government action or inaction has furthered environmental degradation. Refugees searching for environments that will safely support them are trying to escape the effects of governmental policies that have harmed them. Thus, environmental refugees satisfy the "persecution" requirement of the 1951 definition of "refugee."

B. Persecution of Environmental Refugees "for Reasons of" Their Membership in a Social Group

     In addition to the "persecution" requirement, the 1951 refugee definition also requires that a person be persecuted "for reasons of race, religion, nationality, membership of a particular social group or political opinion." 229 Throughout the forty-six year history of contemporary international refugee law, the "for reasons of" requirement has been met primarily by persecution on the basis of politics, race, or religion. 230 However, this trend should not be understood to impose artificial limitations on what will satisfy the "for reasons of" requirement. There are many forms of persecution. Politics, race, and religion simply do not exhaust all the bases upon which a government can subject its people to harm. Interpreting refugee law to mean persecution on these three bases alone ignores the injuries that millions of environmental refugees have suffered at the hands of their respective governments.

     "Social group" is the broadest of the five bases of persecution enumerated by the 1951 refugee definition. Conceptually, the "social group" basis subsumes the others. It acts as a "catch-all" for individuals not falling into the remaining categories. 231 It is believed that "social group" was included as a basis of persecution *522 at the Refugee Convention specifically to protect refugees persecuted on account of unforeseen reasons. 232

     Environmental refugees are persecuted for reasons of their membership in a particular social group. This social group is composed of persons who lack the political power to protect their own environment. It is on account of their political disempowerment that these people become victims of environmental degradation. 233

     In the context of the refugee definition, a "social group" needs to be able to exist independently of the persecution at issue. 234 Otherwise there would be a "social group" and an accompanying right to refugee status whenever a group of persons feared persecution for any reason common to them. 235 A social group composed of persons lacking political power to protect their environment seems to be defined by nothing more than the harm sought to be remedied. 236 However, the next Section will show that persons lacking the political power to protect their environment *523 constitute a concrete social group even outside of the 1951 refugee definition.

1. The Environmental Justice Movement

     The Environmental Justice movement 237 recognizes those who are politically powerless to protect their environment as a distinct social group. Although this movement is entirely unrelated to refugee law, it shares many of the same concerns embodied in the Refugee Convention. To this extent, its conception of environmentally disenfranchised persons as a distinct "social group" may be similarly legitimate in the refugee context.

     The ultimate goal of the Environmental Justice movement is to provide all people with environments that are equally safe, nurturing, and productive. 238 Studies fueling the Environmental Justice movement reveal that environmental hazards disproportionately impact the politically disempowered. 239 Throughout the world, people with the least political power are invariably saddled with the most environmental problems. Effectively, the Environmental Justice movement defines as a social group those persons with too little political power to prevent the degradation *524 of their environment. Environmental refugees are members of this social group; it is because of this membership that they are subjected to the environmental degradation that their government promotes. These Environmental Justice studies provide independent proof that a social group of persons politically powerless to protect their environment exists, thus strengthening the argument that environmental refugees satisfy the "for reasons of" requirement as members of a "social group."

2. Membership in the Social Group of Persons Lacking Political Power to Protect Their Environment

a. The Environmental Refugees of the Sahel

     The environmental refugees generated by the desertification of the African Sahel are members of a "social group" lacking the political power to protect their environment. Corruption is pervasive within the governing elite of Africa. The policies of past governments have left significant political and economic gaps between the white minority and other citizens, 240 thus enabling corrupt practices to continue. Self-aggrandizing activities on the part of politicians and bureaucrats make it extraordinarily difficult for citizens to garner political power. With no political leverage, these citizens lack the ability to make their environmental concerns heard. 241 African politicians are free to ignore, or even worsen, the environmental degradation harming their citizens precisely because those citizens lack the political power to force the authorities to pay attention to their needs.

     The actions of these self-serving politicians demonstrate their lack of concern for the underclass and their environment. The Sahelian governments exacerbate environmental degradation by continuing to squeeze agricultural exports out of their impoverished citizens and their deteriorated lands. 242 They have even been known to sell foreign aid meant for their needy citizens, [*525 FN243] blatantly disregarding the food shortages, land deterioration, and other environmental crises that their citizens face.

     In recent decades, the politically disempowered people of the Sahel region have suffered disproportionately severe environmental harm. 244 It is precisely because Sub-Saharan Africans are members of a "social group" without political power to protect their environment that the African governments continue to subject them to environmental degradation.

b. The Environmental Refugees of Global Warming and Sea Level Rise

     Likewise, the environmental refugees generated by global warming and sea level rise are members of a "social group" lacking the political power to protect their environment. Geological and geographical circumstances have chosen the countries that will sustain the most severe environmental damage from global warming--Bangladesh, China, Egypt, India, and the island nations. 245 However, it is clearly more than coincidence that these are predominantly developing countries with little political power in the global arena. These countries do not have the political leverage to halt the global warming that threatens them.

     By definition, developing countries lack the global political power of developed countries. The environmental concerns of the citizens of these less developed countries are quickly overridden by the concerns of the economic superpowers. It is not in the financial interest of the developed world to reduce their carbon dioxide emissions in the near future, since many industries would have to be curtailed. The citizens of developing countries, for whom sea level rise is a very real issue, lack the political power to force developed countries to reduce their outputs of GHGs.

     It is precisely because the citizens of the nations to be most severely affected by global warming are members of a "social group" without political power to protect their environment that the governments of the developed world continue to expose them to the risks of environmental degradation.

*526 c. The Environmental Refugees of Chernobyl

     The environmental refugees generated by the Chernobyl disaster are members of a "social group" lacking the political power to protect their environment as well. Within the constraints of their communist regime, Soviet citizens lacked the political voice to pursue their individual environmental interests.

     The Soviet authorities had complete power to force the Chernobyl plant into operation dangerously ahead of schedule. 246 The Soviet government also had the unquestioned authority to place the majority of its nuclear power plants near densely populated areas. 247 It is precisely because Soviet citizens were members of a "social group" without political power to protect their environment that the Soviet government subjected them to environmental degradation.

C. Environmental Refugees Are Entitled to Refugee Status

     This Note has argued that environmental refugees fit within the already existing 1951 refugee definition. Environmental refugees experience government persecution. They flee governments whose actions or failures to act have harmed them by causing the degradation of their environments. And environmental refugees experience persecution because they are members of a "social group" of people who are politically powerless to protect their environment.

     Neither the "persecution" nor the "for reasons of" requirements can legitimately preclude environmental refugees from obtaining refugee status. They are refugees persecuted for reasons of membership in a social group, and they are entitled to refugee status under the current international refugee system. 248

D. The "Floodgates" Concern

     Before concluding this Note, it is important to address the "floodgates" argument; 249 that is, the popular argument that stretching the definition of "refugee" will open the floodgates of *527 the international refugee system and swamp national governments with protection costs and resettlement needs. 250

     The over-burdening of refugee systems is a legitimate concern for the signatory nations of the Refugee Convention. Interpreting the 1951 refugee definition to include environmental refugees would potentially allow twice as many refugees into the international system as are now currently recognized. 251 The sheer increase in numbers could render any global response ineffective as the refugee system becomes overloaded. 252

     However, under this proposal, national governments and the refugee system will not be overwhelmed. 253 This Note's argument that the 1951 refugee definition includes environmental refugees carries with it the presumption that receiving countries will never be expected to host more refugees than they can adequately sustain. The sovereignty of national governments will not be threatened. They will retain the authority to decide at what point to cap the refugee flow into their territories. 254 A limit on the number of refugees who can receive assistance must be maintained, otherwise the very existence of the refugee program may be jeopardized. A breakdown of the international refugee response system is the worst thing that could happen to the global community at a time when its displaced population is greater than ever before.

     The goal of this Note, therefore, is not to force the signatory nations to host ever-increasing numbers of refugees. Rather, it is to demonstrate to these governments that environmental refugees meet the 1951 refugee definition and to persuade them to provide environmental refugees with the opportunity to fill the limited spaces allotted to refugees within their immigration systems. *528 The hope underlying this Note is that the international community will realize that environmental refugees are as deserving of the protections of official refugee status as are traditional refugees. The important point is that environmental refugees "would not a priori be excluded from consideration" for refugee status. 255


Conclusion

     As long as the 1951 refugee definition presumes to retain jurisdiction over international refugee flow, it must be responsive to new demands. The utility of law is determined by its capacity to solve problems. The emerging environmental refugee crisis demands that the law react. 256

     Environmental refugees should be eligible for official refugee status throughout the international community. Their experience of being persecuted for reasons of membership in a particular social group 257 lands them squarely within the traditional refugee definition. By showing that environmental refugees meet these definitional requirements, this Note presents an argument to be followed by immigration lawyers and environmentally-displaced people who attempt to secure refugee status within the signatory countries in the future.

     Moreover, the international system should recognize environmental refugees as official "refugees" not simply because they meet the terms of the 1951 definition, but because they deserve assistance. Denying people refugee status because they fail to meet the narrow definitional requirements established forty-six-years ago is inconsistent with the spirit of the 1951 Refugee Convention. Such a result would clearly allow formalism to triumph over substance and tradition to triumph over current realities. 258

     This Note has presented a way to protect environmental refugees without altering the text of the 1951 refugee definition and without overloading national immigration systems. In light of *529 this proposal, the governments of the Refugee Convention's signatory nations will no longer be able to ignore the existence of environmental refugees by saying that they do not fit within the existing refugee regime. 259 Environmental refugees do meet the requirements of the 1951 definition and they are deserving of the help and protections traditional refugees receive. Environmental refugees will continue to migrate and reach the shores of receiving countries; it would be catastrophic to send them back.