PROTECTION AND PROMOTION OF DIGNITY OF ENVIRONMENTAL MIGRANTS IN BRAZIL AND IN THE UNITED

STATES OF AMERICA

A PROTEÇÃO E A PROMOÇÃO DA DIGNIDADE DOS MIGRANTES AMBIENTAIS NO BRASIL E NOS ESTADOS UNIDOS DA AMÉRICA

Tarin Cristino Frota Mont’Alverne1

Ana Carolina Barbosa Pereira Matos2

ABSTRACT: In recent decades the condition of the environment around the world is increasingly getting worse, the world population has been suffering from ecological disasters caused by centuries of exploitation of nature by man. In 2005 the United Nations University released a report that predicted that by 2010 the world would have more than 50 million environmental refugees. However and despite the growing number of environmental migrants, there isn’t, so far, an international regulation able to handle this situation. This article will examine the concept of refugees, environmental refugees and the concept of internally displaced persons, and also highlights the difficulties in the recognition of ecological migrants as refugees, presenting the treatment of this issue in Brazil and in the United States. Therefore, the main purpose of this paper is to awaken the law scholars and professionals for the relevance of the topic as well as stimulating debates on these issues and its solutions. Methodology employed is bibliographical, theoretical, descriptive, exploratory, dialectical and mainly inductive. In the end, it was observed that Brazil and the United States because ratified the Universal Declaration of Human Rights, have undertaken to promote social progress and to develop better living conditions for men, based on the dignity and worth of the human person, and should cooperate for the protection and promotion of the dignity of environmental migrants.

KEY-WORDS: Environmental refugees. Internally displaced persons. Human dignity. International legal protection.

RESUMO: Nas últimas décadas a situação do meio ambiente em todo o planeta vem cada vez mais se agravando, a população mundial tem sido vítima de tragédias ecológicas causadas por séculos de exploração da natureza pelo homem. Em 2005 a Universidade das Nações Unidas divulgou um relatório que previa que até 2010 o mundo teria mais de 50 milhões de refugiados ambientais. Ocorre que, apesar de crescente o número de migrantes ecológicos, não há, até o momento, regulamentação internacional apta a tratar desta situação. O presente artigo analisará o conceito de refugiado, de refugiado ambiental e de deslocados internos, 1 Professor at the Law School of the Federal University of Ceara (UFC). Graduated in Law from the University of Fortaleza (2001), Master in Public International Law - Universite Paris V (2004), doctorate in International Law of the Environment - Universite Paris V and University of São Paulo (2008), acting on the following themes: international law, environment, foreign trade, international negotiations, intellectual property.2 PhD student in Constitutional Legal Order by the Federal University of Ceará. Master in Constitutional Legal Order by the Federal University of Ceará, with a degree in law and specialization in Civil Procedure, both from the University of Fortaleza. Lawyer and law professor of the University Center Estacio of Ceará.

além de evidenciar as dificuldades existentes para o reconhecimento dos migrantes ecológicos como refugiados, apresentando o tratamento desta questão no Brasil e nos Estados Unidos. O objetivo geral desse trabalho é, pois, despertar os estudiosos e operadores do Direito para a relevância do tema, assim como, fomentar o debate em busca de soluções para a problemática ora abordada. A metodologia utilizada é bibliográfica, teórica, descritiva, exploratória e dialética, com predominância indutiva. Ao final, observou-se que Brasil e Estados Unidos, ao ratificarem a Declaração Universal dos Direitos Humanos, comprometeram-se em favorecer o progresso social e a instaurar melhores condições de vida para os homens, com base na dignidade e no valor da pessoa humana, razão pela qual devem cooperar para a proteção e promoção da dignidade dos migrantes ambientais.

PALAVRAS-CHAVE: Refugiados ambientais. Deslocados internos. Dignidade da pessoa

humana. Tutela jurídica internacional.

INTRODUCTION

In recent decades the state of the environment across the globe is increasingly getting

worse, the world population has been suffering from ecological disasters caused by centuries

of exploitation of nature by man - such as earthquakes, tsunamis, sea level rise, acid rainfall,

increased temperature of the earth, etc. - Natural disasters that impacts not only in nature, but

also directly in human life.

 In 2005, the United Nations University released a report with alarming figures about

the amount of displacement of people from their place of origin because of environmental

disasters, it was predicted that by 2010 the world had more than 50 million environmental

refugees. It turns out that, despite a growing number of ecological migrants, there aren't, until

this date, international regulations able to deal with this situation, what hurts the dignity of

these people.

It should be noted that there is not the recognition of refugee status for these migrants

by environmental tragedies, which greatly complicates the legal protection of these people

internationally.

To fill the existing regulatory gap, urges an appropriate international response, since

the existing international standards are unable to give proper treatment to the complexity of

the problem in question.

This work begns with the analysis of the concept of refugees, through the facts that

influenced the creation of this category of individuals in the international harvest, as well as

analyzing its regulation under international law. Finally, the concept presented will be used as

a basis to determine who are the environmental refugees and what is their international

regulation as well as the differences in relation to the concept of internally displaced persons -

IDPs.

Then will treat the difficulties for the recognition of environmental refugee notion in

terms of international law, for in the end, discuss the role of Brazil and the United States on

the issue of environmental migrants.

It is intended, with this article, wake scholars and law professionals of the

importance and urgency of the issue and the lack of legal instruments to protect and guarantee

basic rights to called environmental refugees, as well as foster the search for debate solutions

in the context of international law and the national legislation of the countries under review.

1 THE REFUGEE CONCEPT TO ENVIRONMENTAL REFUGEES CONCEPT

The refugee figure appears in terms of international law after World War II, due to

the massacre promoted by totalitarian regimes in Europe of Jews, communist militants,

homosexuals, gypsies, slavs, physically and mentally handicapped, political activists,

Jehovah's Witnesses, some Catholic priests, among many others who were part of politically

unwanted groups by the political regimes of the time.

Many people, in order to save their lives, were forced to leave their homeland to

escape persecution promoted by such systems, being necessary to seek political asylum in

other countries.

1.1 The Refugee concept in international law

In 1951, after the horrors of World War II, the world found that there were thousands

of people who had left everything they knew - and even what they had achieved in material

terms - and moved to foreign countries in search of a place they could live in peace and safe

from racial, religious, political and ideological persecution. In response to this situation has

been edited to the United Nations Convention relating to the Status of Refugees, also known

as the Geneva Convention of 1951 (UNHCR, 2015).

The Convention consolidated the legal instruments that existed regarding the

problem of refugees internationally, establishing minimum standards for the treatment of

these. It predicted also measures regarding the provision of documents, including a specific

travel document for those who were considered refugees in the form of a passport.

The 1951 Convention established the principle of non-refoulement, by this principle

no country can return or expel a refugee, against his will, to a territory where he suffers

persecution.

In addition, the Geneva Convention delimited who would benefit from this concept

that emerged in international law, the refugee figure. According to the Geneva Convention of

1951, art. 1, A, paragraph 2, the term refugee shall apply to any person:

As a result of events occurring before 1 January 1951 and 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.

Note that until 1966 this concept of refugee covered only victims of events occurring

before 1 January 1951 and who inhabited a certain region, however, more than a decade after

the publication of such international standard was necessary to extend the definition set out to

anyone fleeing conflict and persecution situations. When then a Protocol on the Status of

Refugees was prepared which was approved by the UN General Assembly and entered into

force in October 1967.

With the ratification of the Protocol, the signatory countries have implemented the

concept of refugee provisions of the United Nations Convention relating to the Status of

Refugees without limit of dates and geographic space.

In 2010, the United Nations High Commissioner3 (UNHCR) recorded 10.55 million

refugees under its responsibility in the world, with an increase of 153,000 refugees for the

year 2009. However, among them more than ten million refugees assisted by UNHCR, there

is no record of environmental refugees.

1.2 Who are the environmental refugees?

In 2005 a United Nations University Report was published in partnership with the

United Nations Institute for Environment and Human Security stipulating that in 2010 the

planet count on more than 50 million environmental refugees. However, despite the alarming

3 The Refugee Status of the United Nations established an international competence body called the United Nations High Commissioner, with the jurisdiction of promoting international instruments for the protection of refugees and supervise their implementation. By ratifying the Convention and / or the Protocol, the signatory States agree to cooperate with UNHCR in the development of its functions and, in particular, to facilitate the specific task of monitoring the implementation of the provisions of these instruments.

number of people considered in this situation, to date there is no proper regulation of

international concern on the subject (BREITWISSER, 2009, p. 143).

At the International Conference on Environment, Forced Migration and Social

Vulnerability, conducted by the United Nations University in October 2008, it has been

announced that the number of environmental refugees in the world had grown to 25 million

and this number should increase to 200 million by the 2050 (ARAIA, 2009, p. 40).

It should be added that not even the term refugee can be applied to environmental

migrants, having no basis in the Convention on UN Refugee this broad interpretation of the

classical notion of refugee.

Internationally environmental refugees are only migrants with characteristics of

refugees as a result of environmental disasters. According to the information on the UNHCR

website, migrants would be those who decide to get around, mainly for economic reasons, to

improve prospects for themselves and their families and refugees are those who are impelled

to move to save their lives or preserve their freedom, not having their own state protection or

even threatened with persecution by the authorities of your own country (UNHCR, 2015).

Refugees are people who did not receive aid and care from other countries, were

being sentenced to death or to a life in hiding, without support and without rights. However,

"the line between Those Who leave Their homes out of fear and Those Who chose to seek a

better life across borders is blurring, raising new issues for refugee protection" (UNITED

NATIONS NEWS SERVICE, 2007).

The definition of a refugee in the Geneva Convention of 1951 is very restricted and

only consideres as refugees the people who are being persecuted because of their race,

religion, nationality, membership of a particular social group or political opinion. It is

inferred, therefore, that this definition, in such terms, has no way to be extended to the

environmental refugees.

At the regional level there is the Organization of African Unity Convention of 1969

(OAU) that consigns a broader definition of refugee, which allows the inclusion of

environmental migrants in the category of refugees. The OAU Convention provides that it is

considered refugee, everyone who crosses national borders, due to man-made disasters,

regardless of the existence of fear of persecution (PIOVESAN cited by BREITWISSER,

2009, p. 143).

Even with the relevance and urgency of environmental refugee problem, very little

has been done by States and by the United Nations to address this issue. The theme has been

restricted to academic discussions, no international standard with the aim of expanding the

traditional concept of refugees has been edited.

 In 1985, the United Nations Environment Programme (UNEP) developed the

concept of who would be the environmental refugees, based on the definition developed by

one of its researchers Essam El Hinnawi (HINNAWI cited by BARBOSA, 2007 ).

For Essam El Hinnawi, environmental refugees are people who have been forced to

leave, temporarily or permanently, where traditionally lived, because the visible decline of the

environment (by natural or human reasons), that endanger its existence or seriously affect

their conditions and quality of life (HINNAWI cited by BARBOSA, 2007).

It is this concept that has been used as a paradigm for discussions on the theme of

environmental refugees, but it yet lacks any international legal support, therefore without any

legal validity, recognized only by the academia.

1.3 The important distinction between Environmental Refugees and Internally

Displaced Persons

Beyond the concept of environmental refugees, it is important to note that there is

another definition which is also important for understanding the problem under analysis, it is

identifying who are the IDPs, or internally displaced persons.

The understanding of Essam El Hinnawi about who the environmental refugees is,

however, very broad, for him people in this condition are those who are forced to move,

temporarily or permanently, from the place where traditionally lived to another due to the

noticeable decline of the environment, including those who migrated internally, within the

territory of its own state, and those who migrated exceeding the borders of their country.

According to Erika Pires Ramos (2011, p. 19), "Individuals and groups that need to

leave temporarily or permanently their places of origin or residence pressured by

environmental causes have been generically called 'environmental refugees'."

In 1998 the UN adopted the guiding principles concerning internally displaced

persons (UN, 1998), prepared by an international team of legal experts in collaboration with

international agencies and NGOs, which was devoted to defining who is the internally

displaced, in item two of introduction, as follows:

For the purposes of these Principles, internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.

Unlike the traditional concept of refugee established by the United Nations, the

interpretation that is given about the internally displaced persons is broader, also including

environmental migrants. From this definition, it is clear that the environmental refugee term

should be understood as gender, which stands out as one of its species IDPs.

This differentiation is important for the analysis of the legal regime of protection of

internally displaced persons, bearing in mind that it must be considered that responsibility for

the protection of this category of environmental refugees falls first on national governments,

however, this does not remove the need for an international system of protection and

promotion of rights of IDPs, considering that depending on the extent of the effects of

environmental degradation, the provision of assistance internally by the State can remain

seriously compromised or even unfeasible (RAMOS, 2011, p. 72).

In this study, the IDPs expressions and environmental refugees will not be used

interchangeably, the first will designate those who are driven by environmental issues to

move within the same country, and the second will deal with those people who are forced, due

to severe environmental degradation, cross the borders of their country of residence. The

objective is to differentiate the legal treatment of each of these categories of environmental

migrants.

2 DIFFICULTIES FOR RECOGNITION OF THE ENVIRONMENTAL REFUGEE

CONCEPT ON THE INTERNATIONAL LAW

It is undeniable that the right to an ecologically balanced environment it is a

fundamental human right, which integrates the notion of human dignity, making it impossible

to speak of human dignity if the person is not inserted in a healthy habitat.

Furthermore, the impact of human activities on the environment is notorious, causing

an imbalance in the entire environmental system4 as to push entire populations to move to

4 Proof of this environmental imbalance is that in November 28, 2011 was released by the UN agency for food and agriculture (FAO) that 25% (twenty five percent) of the Earth's land is highly degraded. (RFI, 2011)

other towns or even to other countries - such as Tuvalu5 - looking for minimum environmental

conditions for their survival.

So why there is no legal protection of environmental refugee internationally? The

answer to this question is not so simple, but goes through a series of complex and

interconnected factors, since lack of interest of the states, to the risk of weakening the refugee

concept and its international legal protection.

It should be noted that this paper is not intended to exhaust all the difficulties pointed

doctrinally to the consolidation of environmental refugee notion in the context of international

law, but will be going to analyze the main obstacles to the legal protection of this category of

migrants, with the desideratum not only to point them, but also present a critical view on the

matter.

2.1 The United Nations Convention relating to the Refugees Status

The major concern that permeated the development of the Geneva Convention was

the protection of World War II refugees, it was sought to promote stability in Europe as well

as to solve the problem of the 40 million people who were forced to move from their place of

origin because of totalitarian regimes that dominated the European continent during the first

half of the twentieth century (ROCHA, 2010, p. 17).

A decade after the enactment of the Convention relating to the Refugees Status, there

was the occurrence of new refugee flows from Africa and Asia, which showed that the

ideological and racial persecution were not issues observed only in totalitarian regimes in

Europe context of World War II and that if the refugee definition to remain the way it was

envisaged in the 1951 Convention, such a concept would be completely inappropriate and the

desired legal protection would be completely innocuous before the reality of victims of

persecution that proliferated around the world ( ROCHA, 2010, p. 20).

Thus, in 1966, when drafting the Protocol of the Statute of Refugees, concern

remained to protect the victims of political, racial and ideological persecution, however,

sought to eliminate the temporal and geographical limitations contained in the Geneva

Convention.

5 Tuvalu is a country made up of nine atolls located in the Pacific Ocean, with a maximum altitude of 4.5 meters. Problems such as the erosion of the sea coast, saltwater flooding, freshwater scarcity, difficulty of sewage disposing and overpopulation have led to the deterioration of environmental conditions, which has led many people to leave their country of origin and migrate for, mostly, New Zealand. However New Zealand ruled out accepting the migration of all Tuvaluans. (ARAIA, 2009, p. 40).

The United Nations Convention relating to the Status of Refugees is 1951, since its

Protocol is 1966, it is noted that both predate the international concern for environmental

issues, given that the deterioration of environmental conditions on the planet is a new

problem, and in focus only from the last two to three decades. In 1951 and in 1966, the

environmental problems not even existed internationally, such human rights standards were

restricted to be concerned about the victims of ideological persecution, which is why the

content is so restricted.

It happens that, as there have not been new protocol or convention which would deal

about the international legal protection of refugees in order to contextualize and to extend this

definition, many nations, as well as the United Nations Refugee - UNHCR - understands that

there is no legal support for the inclusion of environmental migrants (or climate migrants - as

some call) in the concept of refugee, that's the reason that there is no guarantee that the

victims of environmental disasters will receive assistance and international protection

(BREITWISSER, 2009, p . 147).

It should be noted that, with respect to internally displaced persons, the concept

adopted by the United Nations was much broader, including also those who are compelled to

leave their places of habitual residence for natural issues, which means the recognition of

environmental migrant, at least in the internal level of states.

2.2 The weakening of the international regime of refugee protection

The UNHCR argues that international renegotiation on the refugee concept would

result in a weakening of the protection regime of refugees, endangering the mentioned

international protection system (BREITWISSER, 2009, p. 147). Because of the 1951

Convention, together with the 1966 Protocol, represent a historic achievement in the field of

human rights, environmental protection migrant would not justify such a risk.

 It is argued that as the problem of refugees is already quite critical in the world,

adding a further category of beneficiaries by the legal protection given to those who are

considered as refugees, could lead to the collapse of the international humanitarian system, in

view of the difficulty to distinguish the purely environmental refugee of the migrants for

socio-economic reasons, which would cause a swelling in the international humanitarian host

system, which, therefore, would have no practical benefit to victims of environmental

degradation, and also harm those who have had rightfully earned the status of refugees.

2.3 The economic and social burden

In recent years, the richest countries have experienced serious financial crises. When

the economy is in decline, all sectors of society suffers, inflation rises, social rights are often

suspended - or even cut - increases the level of unemployment, etc6.

In this scenario in countries such as Portugal, Greece, Italy, Spain, the United States

itself, among others, which is the interest that these countries would have to expand its

international legal protection of refugees, to include in this category the environmental

migrants?

A logical consequence of the expansion of that definition would be the growing

number of people who would ask for refuge to the richest countries, in search of better living

conditions not only looking for a healthy environment for them and their families, but also

with regard to improved social and economic conditions7. Therefore, the provision of safe

haven to environmental migrants would require of the so-called developed countries a

financial, social, economic, institutional restructuring and extremely costly policy as host

country, which at the moment is nothing interesting for them, since they have not even

achieved - in many cases - to ensure the local population basic rights.

Furthermore, the populations of the most powerful countries would hardly benefit

from the possibility of requesting refuge to other countries for environmental causes,

considering that the emergence of environmental refugees usually happens in countries

without any security framework to prevent natural disasters and that - mostly - have no

economic conditions for providing humanitarian and social assistance to victims in need.

Moreover, even when developed countries are hit by natural disasters of great

magnitude, people living in the affected regions generally receive adequate protection of the

state and moving only internally the country to safer regions8, which classifies them as mere

displaced internal persons.

Thus, it is clear that is not of the interest to most developed countries ensure specific

international norms to protection of basic human rights for those who are in the environmental

migrant condition.

6 These measures were adopted in recent years by several countries of the European Union as a way to combat the economic crisis.7 According to Paulo Borba Casella (cited by ALMEIDA, 2001), some factors that influence the refuge search in a particular country are the conditions of the labor market of the receiving country and its institutional structure and social rights guaranteed by the state for the population.8 As in the case of Hurricane Katrina in 2005 in New Orleans, where more than a million people have left the city to various parts of the United States (MCINTOSH, 2008).

It should be added that, being the UN a political body in which the states are

represented, that body will reflect the interests of these countries, which justifies the United

Nations resistance to recognize the refugee for environmental causes.

2.4 Cultural and ethnic barriers

Another problem for the acceptance of refugees, no matter which kind of it, is the

issue of cultural and ethnic barriers existing between them and the recipient countries.

Initially due to the integration of these refugees to other states hardly happens in order to fully

preserve the multiculturalism and the plurietnicity, not saving the character of nation of the

refugee groups (LIMA, 2010).

If there is, generally, the simple assimilation of refugee groups through the internal

legal, political, cultural and social structures of the receiving State, therefore, those who can

gain individual rights from the desired asylum, however, will lose the right to be nation.

Also, after the terrorist attack of September 11 in New York, the differences and

ethnic prejudices have further generated obstacle to the reception of refugees. According

Rossana Rocha Reis and Julia Bertino Moreira (2010, p. 22), refugees and immigrants were

seen as potential hazards and threats to host societies (especially, but not only, in relation to

the maintenance of national identity), and been taken to respond and prevent this invasion of

immigrants, increasingly restricting retreat opportunities.

3 THE ROLE OF BRAZIL AND THE UNITED STATES OF AMERICA ON THE

PROTECTION OF ENVIRONMENTAL MIGRANTS

From the foregoing, it can be inferred that the currently existing standards are

insufficient on the likes of international law that protect the ecological disaster victims who

are forced to leave their place of origin in search of minimal living conditions, whether as

within a country or when your country is not able to provide such conditions of subsistence.

However, as the UN and developed countries prefer not to address the issue of

environmental refugees, this matter it is current and urgent and can not be ignored, being

urgent the need to seek a solution to harmonize current international law with the need for

legal protection of migrants for environmental causes.

Given the scenario presented, will be analyzed, the role of Brazil and the United

States in the protection of environmental refugees and internally displaced persons.

3.1 Brazil's role in protecting and promoting the rights of environmental migrants

Brazil lives for centuries with the problem of internally displaced persons by climate

issues, especially because of the long seasons without rain reaching the semi-arid region in the

northeast of the country, called drought. These people became known as drought migrants and

migrated from several Northeastern states to other regions of the country in search of better

living conditions.

The effects of drought are prolonged, lasting up to a few years, slowly dismantling

the entire local production structure, which causes devastating social effects. During the long

dry seasons, the population does not have the adequate infrastructure to cope with such

weather phenomenon, which leads many people who depend on rain to remove from the land

their livelihoods and livestock to flee their usual residences not to die of thirst and hunger.

Despite the problem is old9, Brazil continues to suffer the consequences, for decades

many efforts have been made in order to avoid the devastating environmental and social

effects of the lack of rain.

The Brazilian Federal Constitution assigned to the Union, in its article. 21, item XIX,

the task of institutionalizing a national system of water management, as well as in its article.

3, item III, provides that one of the fundamental objective of the Federative Republic of Brazil

is the eradication of poverty and marginalization and reduce social inequalities.

Among the important efforts made by the Brazilian government, we highlight the

creation of the National Department of Works against the Droughts and the Northeast

Development Superintendence, this last one was extinct in the 90s and its activities were

transferred to the Ministry of National Integration .

Over the last century, many works have been done in order to structure the semi-arid

region to face the dry period as the construction of dams, artificial irrigation projects, and

began the São Fracisco river transposition (DE MELO; PEREIRA; Dantas Neto, 2009).

In addition, local governments have implemented a series of tax policies, with the

granting of tax exemptions for the installation of industries in the states hardest hit by the lack

of rain, in order to try to minimize the dependence of the population in relation to agriculture

and livestock.

The current Brazilian reality, however, shows that the Northeast are still exposed to

the consequences of drought. Second report of the World Meteorological Organization

9 In 1877, drought killed approximately 500,000 people in Brazil. Fortaleza, Ceara state capital, lost half of its 120,000 inhabitants. (DE MELO; PEREIRA; DANTAS NETO, 2009)

(WMO) published in 2014, found that the drought of 2013 was the worst in 50 years, which

represented for the country a loss of eight billion dollars. The country's government had to

intervene with the distribution of food and water in the affected regions (MADEIRO, 2014).

2012 figures indicates that about sixty thousand northeastern annually migrate north and

northeast of Sao Paulo because of the drought, which ultimately impact the regions that

receive these IDPs, in view of the increased demand, especially in health care and social

assistance (COISSI, Juliana, 2012).

With respect to environmental refugees, the Brazilian legal system does not

recognize this category of refugees. According to Law No. 9.474 / 97, the refugee is any

person who "owing to well-founded fear of being persecuted for reasons of race, religion,

nationality, social group or political opinion find yourself outside your country of nationality

and is unable or do not want to welcome to the protection of that country ".

Although there is no specific rule to be applied for protection of environmental

refugees in the country, hundreds of Haitians after the terrible earthquake that hit the country

in 2010, sought refuge in Brazil. What happens is that their processes took twice the normal

time and do not fit the classic definition of refugees, the National Committee for Refugees

(CONARE) sent requests to the National Immigration Council (CNI) of the Ministry of

Labour and Employment, which granted them a "humanitarian residence permit".

The constitutionalization of international law to protect the environment imposes a

general duty to not degrade, harmonizes the right of property with the right of environment,

allows state intervention in this matter, reduces administrative discretion in decision-making,

increases public participation, enhance the protection the environment, provides security

rules, constitutionalises environmental public policy, gives greater strength to pro-

environment interpretation and entails control of the constitutionality of the law on

environmental grounds (SIRVINKSAS, 2008, p. 55-56).

In Brazil, the jurisprudence of Federal Supreme Court (22.164 MS / DF), recognized

the right to an ecologically balanced environment as a fundamental right, considering it as a

right of third generation, since the Minister Celso de Mello stated that the fundamental right

of the environment is the objective representation of the need to protect values and objectives,

associated with the principle of solidarity (AYALA, 2007, p. 371).

Another relevant aspect by Federal Supreme Court in the decision under discussion

was that the court considered the environment as public property to be its protection of

interest of the whole community, and make for the benefit of present and future generations,

which is the quality of the environmental well protected by the Constitution (AYALA, 2007,

p. 372-373).

 There is no doubt that the vision of the ecologically balanced environment is geared

to the interests of the community, whether at national or international level, is therefore

fundamental human right, based on the principle of human dignity (SIRVINKSAS, 2008, p.

151).

Therefore, there is no decent life without being guaranteed the right to an

ecologically balanced environment, it is not possible to admit that victims of environmental

disasters, especially in developing countries, where the State is unable to assist them, would

be having their right to an ecologically balanced environment effected.

Thus, considering that to ensure the realization of the right to an ecologically

balanced environment and the right to a dignified life it is necessary to assist and provide

shelter to homeless and internally displaced persons and to those who leave their country of

origin due to natural disasters, these rights should support the ethical and legal obligation to

protect and support these refugees on the international stage, while comprehensive preventive

measures to prevent ecological disasters are not taken (BREITWISSER, 2009, p. 157-158).

3.2 The United States of America and the rights of environmental migrants

The United States, like Brazil, do not apply a broad concept for refugee figure.

Despite having one of the largest formal refugee programs, the US refugee resettlement

program, and to take its legal system a specific law for the matter, the refugee act of 1980, the

concept of refugee is also very limited, following the terms of Geneva Convention of 1951.

So, is eligible for the refuge, people who have been harassed or have just fear of suffering

persecution because of race, religion, political opinion or membership in a particular social

group (KERWIN, 2011).

However, the granting of temporary protection is possible in the United States to

foreign countries where residents are experiencing armed conflict, natural disaster or other

extraordinary and temporary causes which prevent people from returning. The beneficiaries

may remain temporarily and work legally for certain periods, ranging from six to eighteen

months, and the period of stay can be extended if the conditions that led to grant it initially

still persist. (KERWIN, 2011).

The granting of temporary protection, however, does not solve the problem of

migrants from countries that are about to disappear because of rising seas, such as Tuvalu.

The United States also suffered in recent years the problem of internal displacement,

especially after Hurricane Katrina, when thousands of people left New Orleans toward other

parts of the country in search of better living conditions, given that after the catastrophe the

city was devastated, as well as the trade and the education and health system, and even the

homes of local residents, mostly, were completely destroyed.

However, unlike what happens in Brazil, because the U.S. is a developed country,

these migrations end up having less of an impact in the regions who receive it, as shown in

research by Molly Fifer McIntosh (2008).

Currently, the United States has faced the problem of IDPs coming from Alaska

because of climate change. Approximately 90 percent of native Alaska villages are on the

coast, where dramatic erosion and floods have become routine. Hardest hit is Newtok, about

350 inhabitants, it is expected that by 2017 its highest point is under water (NPR, 2013).

A place to relocate the population, nine miles of the city has been chosen, but the

locals do not know if they will be able to move. The U.S. Government Accountability Office

has estimated that the cost of moving Newtok — with 63 homes — might reach $130 million.

The people of Newtok do not have that kind of Money and the money has not been

forthcoming from the government either. Neither the state nor federal government recognizes

climate change as a disaster for the appropriation of relief funds, because climate change

moves too slowly to be recognized as a disaster, and because you need to move people now,

before the disaster occurs (NPR, 2013).

It is observed that the United States and Brazil, has great challenges regarding the

protection of environmental migrants, are internally displaced or environmental refugees,

having not only a very limited legislation for the protection and proper promotion of their

rights, as well, there is an apparent lack of political will to address the issue in both countries.

The US involvement in safeguarding the rights of environmental migrants would be

an important step towards the expansion of the established concept of refugee on the Geneva

Convention of 1951 and the construction of an international system of protection of

environmental refugees, because of its prominence and influence within the United Nations.

Finally, we can not forget the provisions of the Universal Declaration of Human

Rights to:

Por fim, não se pode olvidar do disposto na Declaração Universal dos Direitos

Humanos que: Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,;

It appears that, Brazil and the United States to ratify the Universal Declaration of

Human Rights (UNITED NATIONS, 1948) pledged to promote social progress and to

develop better living conditions for men, based on the dignity and worth of the human person,

which is why should cooperate for the protection and promotion of the dignity of

environmental migrants.

CONCLUSION

The concept of refugee has not evolved to keep up with the current reality of the

planet, remaining restricted to victims of political, ethnic and ideological persecution.

However, there is a new category of migrants, with refugees features, victims of

environmental disasters, and that do not have international legal support.

It is clear that there is a resistance of States and international organizations in relation

to the recognition of environmental migrants as a refugee, being among the most important

obstacles in the doctrine pointed to the consolidation of such a concept the lack of legal

support of the Geneva Convention to the recognition of environmental refugee.

It was suggested the reasoning of ethical and legal obligation of States and

international organizations to guarantee rights and minimum conditions of life to those who

were compelled to move from their place of origin due to ecological disasters, the universal

right to an ecologically balanced environment and the right to a dignified life, this one

enshrined in the Universal Declaration of Human Rights.

This paper has analyzed the role of Brazil and the United States in the protection of

environmental migrants, is demonstrating that both countries have limited legislation for the

protection and proper promotion of the rights of these people, as well as political obstacles

that hinder the treatment of the issue.

Finally, the article emphasized the importance of US involvement in protecting the

rights of environmental migrants to build an international system of protection of

environmental refugees.

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