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Preface

“Climate change is now found to be the
key factor accelerating all other drivers of forced displacement. These persons
are not truly migrants, in the sense that they did not move voluntarily. As
forcibly displaced not covered by the refugee protection regime, they find
themselves in a legal void.”  Mr. António Guterres1 Current
UN secretary General

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1.0
Background

 This paper seeks to investigate the impact and
the need for the inclusion of ‘environmental refugees’2   this being acknowledged by climatic changes.
The paper also seeks to highlight the protection of ‘environmental refugees’
and under what circumstances would they become recognized under international
law.

Little definition has
been done on the term ‘environmental refugees’ also known as ‘climate refugees’,
as they have not been legally acknowledged by way of any Treaty or Convention. 1951
Convention relating to the Status of Refugees, has not defined a refugee to include ‘environmental
refugees’ This in turn has created a situation where there is a legal lacuna in
 international law.

 However, some International organizations upon
seeing the void have tried to define environmental refugees, most notably being
that by the International Organization of Migration (IOM) as:

Environmental
migrants are persons or groups of persons, who, for compelling reasons of
sudden or progressive changes in the environment that adversely affect their
lives or living conditions, are obliged to leave their habitual homes, or
choose to do so, either temporarily or permanently, and who move either within
their country or abroad3

 Refugee on the other
hand has been defined by the 1951 United Nations Convention on the Status of
Refugees in Section 1 (A) as:

“A person who owing to a
well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion is
outside the country of his nationality and is unable or, owing 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.”4

 

As cited above, the term refugee
does not include migrants who flee from their countries due to climatic conditions;
as such it has created a legal void in international law. Some scholars ;Angela
Williams, Stephen Castles, Thomas Faist and organizations have called for the
inclusion of environmental refugees or special treatment by countries that
receive migrants from climate affected countries in the world.

 

1.1  Statement
of the Problem

Migration5
has proved to be one of the biggest concerns under international law from the
past decade till now. It has proved to be one of the most difficult areas of
study amongst migrant related organizations in the world.   Statistically the number of international
migrants rose from 173 million in 2000 to 244 million people in 20056
and this number is expected to grow further. This topic has been a
controversial topic in all countries, especially since 67 percent7
of the migrants go to only 20 countries with the most going to the United
States. It is also documented that out of the 244 million migrants 65. 6
million of them were forcibly displaced, 22.5 million are refugees and 10
million of them are considered to be stateless persons8
  Therefore there is 145.9 Million people
that cannot be categorized as to why they immigrated as they will not fall on
the 1951 definition of refugees, it is also important to note that the 244
Million people also includes individuals who immigrated due to economic
reasons.

Environmental
refugees have been on the increase in the past decade due to climate
fluctuations, however being that it is a new phenomenon under international law
there is no clear definition on the term environmental refugees or its
inclusion under international law that seeks to protect such persons.

Over
the recent years refugees have increased and as some organizations have attributed
this increase not only due to conflict but also due to environmental
degradation. Climate induced refugees have been on the increase  due  to
elements such as rise of the seal level and other harsh climatic conditions
which has been witnessed in the world. In Pacific Countries like Kiribati and
Tuvalu they have had adverse effects in the rise of the sea level; as such most
migrate to nearby higher ground countries such as Australia. However, due to
the non recognition by International Refugee law, they cannot be protected and
as such cannot be given refugee status.

 This paper shall deal with the Environmental
migration quagmire by Africans with emphasis on the Tuareg community, Western
Sahel. In Pre-Colonization Africa, there were no territorial boundaries that
were set as such it was easier for communities to move from one country to
another however upon decolonization and partition of Africa, some communities
that cut across vast area of lands found themselves in a quagmire. This in turn
has created migration difficulties to the countries as they share not only the
same lifestyle but also the same language, traditions the only difference being
the territorial boundaries. Some of the affected communities affected in the East
African region include but not limited to the Ogaden community of Somalia,
Ethiopia and Kenya as well as the Maasai of Kenya and Tanzania. Other
communities that have been affected in Africa are within the Sahel region, is the
Tuareg community.

 This paper seeks to investigate the Tuareg
community of the Western Sahel region. The Sahel region is vast and cuts across
seventeen countries; however this study limits itself within the western Sahel
region with main emphasis on four countries namely: Algeria, Mali, Burkina Faso
and Niger.  The Tuareg community 9
 is a nomadic tribe within the western Sahel
region of Africa; the community is dived into 6 castes namely:

v  Kel Adagh occupy  from the highlands of Mali10
across northern Niger to Southern Algeria,

v  Kel Ahaggar  occupy the highlands of Algeria11,

v  Kel Ajjer occupy western Libya and
eastern Algeria,

v  Kel Ayr 
occupy northern Niger12,

v  Kel Gres occupy South central Niger and
the

v  Iwellemedan13  occupy from North central Mali across north western
Niger to northern Nigeria.  

Northern
Mali and Niger host the largest group of the Tuareg community, the total Tuareg
tribe has a population of 2 .5Million14.
The Tuareg people have lived in the Sahara desert for years and have adapted to
these harsh conditions throughout the years. What makes it different no as
compared to other decades is that the climatic conditions have worsened
throughout the Sahel. The western Sahel has experienced two droughts between
1968-1974 and 1982-1984 that on record more than 100,000 died mostly being children,
between the first drought and the second drought it has seen more than 750,000
people dependant on food aid in Mali, Niger and Mauritania.15

Majority
of Africa’s environmental refugees come from the Sahel region16,
because of the harsh climatic conditions found, from the expansion of the Sahara
desert to the weather fluctuations from intense flooding to sever drought faced
within the region. The Tuareg Community not only faces harsh climatic
conditions in their territory but they also face government neglect as experienced
in Algeria, Mali, Burkina Faso and, Niger ,this in turn has led to political turmoil
and instability within the region.

Mali
which is currently facing civil conflict squandered relief funds that was not
only meant for the Tuareg community and but other tribes within Mali, the same
corruption spread to Niger. Due to corruption scandals and lack of assistance
from the governments  of  Mali and Niger, majority of the Tuareg
Community moved in masses to Algeria and Libya as the then drought heightened
in the 1970’s and 80’s. This eventually led to the migrants from the Tuareg
Community be treated with animosity in their host countries.

With
the preliminary analysis given above the Tuareg community under international
law can only seek refugee status under the 1951 Convention on the basis of
being persecuted but not because of environmental degradation within their
territorial boundaries. This has led to a lot of instability in the western
Sahel region. The fact that they have been neglected by various governments and
harsh climatic conditions they have been economically forced to join Boko Haram17
and the Tuareg rebellion18
of Mali.

1.2  Justification of the Study

First,
this study seeks to gather knowledge on the basis and recognition for a legal
protection for environmental refugees that can be accorded under international
law. This enhanced understanding will help policy makers to look for solutions
in using more sustainable methods to avoid a lacuna in law and prevent a future
environmental migration catastrophe.

Second,
this study aims to evaluate the Tuareg Community in the Western Sahel region on
aspects surrounding their livelihoods, their rights, self-determination with a
specific interest towards their migration patterns. It also seeks to analyze
and investigate through comparative studies on aspects for the reason for their
inclusion or non-inclusion by certain countries. The study shall also
scrutinize to answer the question as to whether they should be classified as
environmental refugees or simply as political refugees.

Third,
it seeks to hypothetically examine the impact upon their inclusion in
International law and also observe the absence of their inclusion as environmental
refugees in International law. This knowledge will therefore be useful to regional
blocs, policy makers, International organizations, among others in creating an
all inclusive migration policy

Fourth,
this study aims to understand the dynamics and difference between the status of
refugees and internally displaced persons in Africa. This comparative study is
essentially useful in the understanding of communities that are in more than
one territory.  

1.3  Research Objectives

       
I.           
Establish
the key International  law that seeks
to  protect refugees

    
II.           
To
study some of the protection status that are or would be accorded to
environmental refugees

  
III.           
 To examine some of the strategies that legal
scholars have made in addressing the lacuna 
of environmental refugees

  IV.           
To
analyze the extent of migration trends in Africa caused by Climate Change and
its impact on African Economies

1.4    Research Questions

                   
I.           
What
is the scope, meaning and the role of the status of refugees within the western
Sahel region?

                
II.           
What
is the Legal and institutional framework of  refugees in the Sahel

              
III.           
What
factors undermine the actualization of environmental refugees within the Sahel
region

             
IV.           
Lessons
that can be drawn from various countries that 
that have attained and recognized environmental refugees into their law

               
V.           
What
are some of the directives that can be deployed to cure the lacuna

             
VI.           
Migration
trends in the world, with an emphasis of Africa.

          
VII.           
 To understand refugee economics, in order to
critically evaluate their impact to societies and countries. In particular a
case study of Uganda as it has accepted a different approach in dealing with
refugees.

1.5  Methodology

This study will only use secondary qualitative methods
of research. It will mainly use books, journals, articles and other written
sources.

Various literature materials will be read and analyzed
to adduce information on the topic. Consequently, a
comparative analysis between the western Sahel countries and that of some of
the more open policy refugee accommodation from other countries will be made.

 

1.6Literature
Review

Based on preliminary literature, there is no
recognition of environmental refugees under international law and countries
that have recognized such refugees have done so under their municipal policy.
While international organizations such as the International Organization of
Migration have vehemently opined that the scale of migration will increase due
to climate change19.This
discourse has been an area of contention over the last decade, on the status of
environmental refugees.

 Though,  The freedom of movement or mobility is a human
right under Article 13 of the Universal Declaration of Human rights (UDHR),
which is a principle under Internal law as such they should not be
discriminated and should be treated equally:

“Everyone has the
right to freedom of movement and residence within the borders of each State.

Everyone has the
right to leave any country, including his own, and to return to his country.”

 

The obligation to include environmental refugees
under international law and give them recognition has been coupled with a lot
of hurdles .There are various types of migration Voluntary Migration, Forced
Migration and Internal Migration depending on the push or pull factors. In this
paper I will classify environmental induce migration as forced migration, as
they are people who have left their natural habitat due to  environmental catastrophes , natural  disasters such as Tsunami’s, Floods, Drought
and manmade disasters such as biological and chemical pollution, deforestation
and oil spills.

This paper will deal with Forced migration, which
deals with the aspects of refugees and asylum seekers.  Under Public international law, one may
believe that forced migration deals with aspects of war or political repression
but over the years it has evolved to include people who flee from their countries
or regions because of a manmade disaster or a climate induced disaster. Two
distinct examples of environmental disasters are: The 1986 Chenorbyl disaster, in
Ukraine where a nuclear plant had a leak and exploded that saw the immediate
evacuation of the citizens in that area, this is a manmade environmental
disaster, in Indonesia, 2004 they experienced a natural disaster, tsunami,
which saw more than 600,000 people being displaced in the country.

However,
though how appealing the UDHR article 13 is the Convention on the status of
Refugees of 1951 does not correlate. This therefore creates a lacunae under
international law, this in turn has created crisis.  In 2009, in a report20
by the United Nations High commission for Human rights (UNHCR) encouraged the
international community to come up with political solutions for dealing with
persons that have been displaced due to climate change.

 

 

1.7Theoretical Framework

 Immigration
is considered a fundamental human right as indicated in Article 13 of the
Universal declaration of Human rights21
the notion of human rights is a byproduct of natural law theories, which have a
moral principle code prescribing treatment of all human beings to equal
dignity. The pioneers of natural law in regard to human rights were developed
by classical philosophers such as Aristotle and Plato. However, the well versed
John Locke developed this concept vehemently where he argued that the law f
nature should not harm the ‘the
life, the liberty, health, limb, or goods of another”,22
as he held that:

…..
The end of Law is not to abolish or
restrain, but to preserve and enlarge Freedom: For in all the states of created
beings capable of Laws, where there is no Law, there is no Freedom23.

The
objective of the moral doctrine of human rights is to ensure that the
fundamental essentials of all human beings are fulfilled and that the state
should ensure that their power is limited to the preservation of these rights.
The seven most fundamental principles are outlined in the natural law
theory  presupposes that  inherent rights are formally given by a higher
being to man, which include the basic rights such as rights to ‘life’, ‘ food’,
 ‘shelter’ and ‘clothing’. The doctrine
of human rights extended from the natural rights to also embody the rights to
Self integration, avoidance of pain and mental health and harmony as being
fundamental. These additional rights As Also viewed by liberalist such as
Ludwig von Mises who added that

“….every individual has the right
to live and to work whenever they want to, this is seen as a basic human right,
if a person is not allowed to work whenever he wants then that is not freedom
as his freedom of association, movement and of ownership to property will be
curtailed…24”

This
study will be highly guided by the principles laid down by natural law theorists
in cognizance with the human right approach on immigration.25
Simply put that freedom of association, movement and right to own property as
fundamental to the livelihood of all human beings. As is one the ways the poor
get an opportunity to enter the middle class and the middle class may enhance
their status in life. The aim is to analyze international law that purposefully
embodies natural law principles partly to act on acknowledging and enabling
this possibility.26

Thus,
in order to prove the existence of a legal gap, there is a dire need to ignite
a discourse on the inclusion of environmental refugees and award them the same
status as acquired by political refugees. The refugee rights  will be legally assured to all human beings without
prejudice; it will be the responsibility, duty or obligations of the state to
preserve, dignify and fulfil the basic human rights regardless of the origins
of the individual as if the law varies from area to another it seizes being a
human right.27

 

1.7        
Scope
and Delimitations of the Study

 The Western Sahel region of Africa is
expansive as such this paper will only seek to investigate the Tuareg community
within the territorial borders of Southern Algeria, Northern Mali, Burkina Faso
and Northern Niger.

As
International law is broad this study will limit itself to International and
African Treaties or Conventions on rights or status of refugees and
International Organizations that deal with migration and refugees.

Material
used to compile the study will be gathered from secondary material that is
books, journals, magazines, newspapers, electronic blogs and e-books among
others.

 

1.8        
Chapter breakdown

Chapter One will be the introduction of the topic, which will
bear an introduction and a  background to
the problem calling for the protection of ‘environmental refugees’ as well as
identifying the existing legal gaps in the area. In this chapter I shall also
in detail introduce my case study, the Tuareg community found in the western
Sahel and the protection crisis that they face if any.

 

Chapter Two of the paper will examine existing international
refugee law that seeks to protect ‘environmental refugees’. In this chapter I will
particularly focus on both International and regional refugee decrees, in order
to determine whether the current laws encompasses them or will it be possible
to achieve a goal on the protection of ‘environmental refugees’. In this
chapter I shall also examine human rights conventions both internationally and
regionally, where I shall also include in the study the link between climate change
and violation of human rights.

 

 In Chapter Three, I will
the chapter shall include a comparative study with other countries that have
included environmental refugees into it. In this chapter I shall have a
comprehensive analysis contributed in part by the background of chapter 2 . The
chapter shall also include a clear understanding of cases that have arisen
through the years on the topic.

 

Chapter Four, will be the final chapter and it shall have
the recommendations and conclusions that have come from my analysis of the
previous chapters.

1 United Nations High Commissioner for Refugees, Intergovernmental
Meeting at Ministerial Level to mark the 60th anniversary of the 1951
Convention relating to the Status of Refugees and the 50th anniversary of the
1961 Convention on the Reduction of Statelessness

2  “Those people who have been forced
to leave their traditional habitat, temporarily or permanently, because of a marked
environmental disruption (natural and/or triggered by people) that jeopardized
their existence and/or seriously affected the quality of their life.”  El- Hiwani, UNEP (1985)

 

“People
who can no longer gain a secure livelihood in their homelands because of
drought, soil erosion, desertification,  deforestation
and other environmental problems, together with associated problems of population
pressures and profound  poverty.  In their desperation, these people feel they
have no alternative but to seek sanctuary elsewhere, however hazardous the
attempt. Not all of them have fled their countries, many being internally
displaced. But all have abandoned their homelands on a semi-permanent if not
permanent basis, with little hope of a foreseeable return.” Myers (2007)

 

3  Koko Warner
et al., In Search of Shelter: Mapping the effects of climate change on Human
migration and Displacement, May 2009 ( United Nations University Institute  for Environmental and Human security)

4 1961 Convention and Protocol
relating to the  status of refugees

5 “Any person who is moving or has moved
across an international borders or within a state away from his/her habitual
place of residence, regardless of (1) of the person’s legal status; (2) whether
the movement is voluntary or involuntary; (3) what the cause for the movement
are; or (4) what the length of the stay is” IOM

6 International
Migration Report 2015 : Highlights: ST/ESA/SER.A/375 : Department of Economic and
social affairs

7 Ibid 4

8 http://www.unhcr.org/figures-at-a-glance.html on 12th October 12, 2017 at 2:23PM

9 Tuareg is the plural name of community an
individual is referred to as Targui, Tuareg,
refer  to themselves as Kel (People
of) Tamasheq  bound by their language Tamasheq which they commonly share among all countries of the
western Sahel that inhabits the Tuareg community.

10
Adrar des Ifoghas, located in Northern Mali

11
Hoggar mountains found in South eastern part of Algeria

12
Kel Ayr are center around Aïr Massif  in
northern Niger

13  Also known as Iullemmeden, Aulliminden
and Ouilliminden

14 Joseph R. Rudolph Jr. (2015). Encyclopedia
of Modern Ethnic Conflicts, 2nd Edition 2 volumes. ABC-CLIO. p. 381. ISBN 978-1-61069-553-4.

15 Ibid2

16
https://www.migrationpolicy.org/article/tuareg-migration-critical-component-crisis-sahel
Merise Jalali formerly interned at MPI, working with the Migration and
Development Program.

17 An Islamic insurgence group in West
Africa

18 
Also known as Azawad , it is a movement that focuses on the secession of
Northern Mali that inhabits majority of the Tamasheq people

19 International
Organization for Migration’s Perspective on Migration and Climate Change Archived
8 August 2009 at the Library of Congress

20
10th session of the Human rights Council, United Nations document
A/HRC/10/61, 15th January 2009, p.22

21 “Everyone has the right to freedom
of movement and residence within the borders of each State. Everyone has the right to leave any
country, including his own, and to return to his country.”

22  John Locke Second
Treatise on Government (1690) 
Chapter 2

23
John Locke Second treatise on Government
( 1690) Chapter 6 section  57

24 Ludwig Von Mises, In the classical tradition
Liberalism,

25 B.C. Nirmal, Natural Law, Human Rights And Justice Some
Reflections On Finnis’s Natural Law Theory, retrieved from
www.bhu.ac.in/lawfaculty/blj2006…09/…/4_BC_NIRMAL_NATURAL%20LAW.doc

26 W. Friedmann. Legal Theory (Third Indian Reprint
2003), 95. Says, ‘the history of natural law is a tale of the search of mankind
for absolute justice and its failure’

27 D. Beyleveld, and R. Brownsword,
Law as a Moral Judgment (1986)

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