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Book Reviews
Laura Westra, Environmental Justice and the Rights of Ecological Refugees
(Earthscan, London, 2009, 320 pp., »65.00) ISBN 9781844077977 (hb)
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Environmental Justice and the Rights of Ecological Refugees is a valuable, though flawed,
addition to the growing literature on migration, displacement and the environment.
The text represents the final part in a trilogy of works by Westra that have sought to
define and critique ‘eco-crimes’. The two key eco-crimes discussed in this text are the
degradation of the environment caused by polluting multinational corporations and cli-
mate change, both of which are said to be driven by the dominant global capitalist dis-
course. The final result of these eco-crimes is the degradation of land beyond its ability
to sustain life and thus the creation of the ‘ecological refugee’. In defining the scale of
the potential problem, Westra refers to figures proposed by Norman Myers and
Christian Aid who have suggested, respectively, that 200 million or 1 billion environ-
mental refugees may be produced by 2050 (p. 4).
Westra states that her text is an attempt to answer the simple question, which is the
logical conclusion of her previous work. Eco-criminals are said to benefit from a
wealth of legal instruments legitimising, and thereby encouraging, their actions and
maintaining the status quo. What, if any, are the legal instruments and regulatory re-
gimes that may be used to stem this abuse and to protect the ecological refugee? (p. xv).
Before addressing Westra’s answer to this question, her approach should be located
within the wider body of literature concerning environmental displacement. The term
ecological refugee is a broad label encompassing those displaced either temporarily or
permanently, internally or across borders, by any ‘physical, chemical and/or biological
changes’ that render an ecosystem uninhabitable (p. 3). This inclusive definition draws
specifically on the controversial definition of an ‘environmental refugee’ proposed by
Essam El-Hinnawi in a United Nations Environment Programme document.1
Among other concerns, critics of the label, ecological or environmental refugee,
argue that environmental drivers of migration cannot be separated from social, cultural
and economic drivers. The label environmental refugee is therefore erroneous and has
the potential to misdirect attempts to protect those impacted by environmental harms.
Westra argues that this critique is in itself a ‘fundamental error’ (p. 81) and that social,
cultural and economic drivers of migration are the root causes of environmental
change and thus migration. For Westra, the lack of recognition of environmental drivers
of migration leads to the conclusion that the problem is not urgent and is amenable to
adaptation. She controversially argues that, in fact, the majority of environmental cir-
cumstances such as rising sea levels, glacial melt and desertification threaten to be nei-
ther gradual nor amenable to adaptation; however, she presents no evidence for this.
It should also be noted at this point that Westra singles out the often ignored but
unique situation of indigenous peoples for particular analysis. She argues that
1 El-Hinnawi, Environmental Refugees (Nairobi: UNEP, 1985) 4.
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Human Rights Law Review 11:1(2011), 195^210
196 HRLR 11 (2011), 195^210
indigenous peoples are doubly cursed by ecological harms. First, exploitable natural re-
sources are often located in indigenous territories. Second, the ‘ideal outcome’ of a refu-
gee’s displacement is their safe relocation. Relocation, however, can never be a
successful outcome for indigenous peoples because indigenous peoples enjoy a sui gen-
eris relationship with their lands (p. 12). This relationship is a religious, cultural and
economic one that, if broken, results in the death of an entire way of life.
In order to answer her ‘simple question’, Westra first seeks to identify relevant legal
regimes before assessing their potential to either prevent ecological crimes, protect eco-
logical refugees or ameliorate their condition. Westra focuses chiefly on refugee law
and complementary forms of protection (Chapters 1^4) and humanitarian law
(Chapters 4^6). Finally, Westra examines proposed solutions to the gaps in protection
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that she has identified (Chapter 7).
In the first four chapters of her text, Westra presents a thorough critical analysis of
the 1951 Refugee Convention and the Guiding Principles on Internal Displacement.
Along with the majority of academic opinion, it is noted that ecological refugees
cannot claim refugee status under the Refugee Convention and that protections for in-
ternally displaced persons (IDP) are limited. Where Environmental Justice diverges from
the general discourse is in its analysis of the ideological and procedural obstacles that
drastically limit the potential of refugee and IDP systems to protect ecological refugees.
As noted above, a key difficulty in combating eco-crimes is said by Westra to be that
they are often not illegal. Refugee law is founded on the concept of persecution.
However, eco-crimes are not, except in very specific circumstances, recognised as a
form of persecution. Equally importantly, Westra argues that the collateral nature of
the ecological degradation caused by eco-crimes means that it is difficult to establish
intent. Protection for IDPs in practice stems from human rights (also an important
form of complementary protection for refugees) and international humanitarian law.
Westra suggests that human rights law is yet to recognise the essential link between en-
vironmental damage and breaches of human rights, though she notes that jurispru-
dence of the European Court of Human Rights is perhaps beginning to rectify this.
The result is that there are many lacunae in the international legal protection of
ecological refugees.
Several factors are identified that serve to create and maintain these lacunae.
Primarily, and perhaps most importantly, Westra suggests that the dominance of the
neo-liberal free trade and development ideologies, as embodied by international organ-
isations such as the Word Trade Organisation and the World Bank, has led to the privile-
ging of economic concerns over the rights of the individual. Second, and perhaps not
unconnectedly, it is argued that courts have interpreted international conventions ex-
tremely strictly. This point is illustrated through an intriguing examination of different
waves of litigation before US courts under the Alien Tort Claims Act. Westra suggests
that US courts have privileged states’ political and economic concerns over human
rights abuses, often by refusing to hear cases on procedural grounds rather than
considering their substantive merits (Chapter 3).
It is the dominance of the procedural over the substantive that, for Westra, is at the
root of ecological refugees’ lack of protection and eco-criminals’ impunity. The injustice
of this reality is illustrated in her suggestion that eco-crimes are substantively racist.
Westra suggests this in light of the fact that many, if not most, cases of ecological deg-
radation caused by eco-crimes are on territory occupied by ethnic minorities and/or in-
digenous peoples. This, she argues, points to a pattern of persecutory results even if
Book Reviews 197
persecutory intent cannot be found. Examples of case law from the US, in which Westra
played an integral role, point to the fact that where claimants are alleging racial dis-
crimination in eco-crimes, it is not necessary to establish persecutory intent. It is not,
however, entirely clear whether Westra presents this argument as an alternative route
for litigation, or as illustrative of a broader argument as to how refugee law could/
should develop to respond to ecological crimes and their victims. However, ultimately,
Westra can find little potential for the assistance of ecological refugees under the
Refugee Convention or the Guiding Principles on Internal Displacement as they exist
today.
Having identified these lacunae,Westra argues that there is a need for a fundamental
realignment of international law. Westra essentially advocates a reorientation of priori-
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ties from neo-liberal ideology, and the restricted ‘positivist’ interpretation of the law
that sustains it, to ‘higher’ values. Following Hersch Lauterpacht, Westra states that the
law’s ‘ultimate validity’ is conferred not by the sovereign power of the state but by its ad-
herence to ‘the higher standards of the law of nature, the rights of man and justice’ (p.
88). While Westra does not explicitly define what justice means in this sense, this can
be inferred from her concept of ‘environmental integrity’. Westra presents three moral
principles of ‘environmental integrity’, the first of which is the most important here,
namely ‘nothing can be moral that is in conflict with the physical realities of our exist-
ence, or that cannot be seen to fit with the natural laws of our environment’ (p. 90).
In practice,Westra suggests that this paradigm shift could potentially lay the founda-
tions for a more substantive analysis of eco-crime and the legal status of ecological refu-
gees. The reprioritisation would, it is argued, give ‘fundamental or elementary rights’
(p. 88) absolute or jus cogens status, thereby operating as a counter to positivist proced-
ural approaches that have perpetuated eco-crimes and their injustices.
In Chapters 5 and 6 of Environmental Justice, the discussion shifts to international
criminal law. Westra argues that eco-criminals are engaged in a form of ecological
oppression and that the potential scale of the harm caused is such that it amounts to a
crime against humanity, or, in the case of indigenous peoples, a form of cultural geno-
cide. However, once again this understanding is not recognised by existing
jurisprudence.
While international criminal law is traditionally levelled against war-time actions,
Westra argues that genocide and more recently, crimes against humanity have been
decoupled from war. Westra notes, however, that the crime of genocide requires a strict
form of direct intent or dolus specialis, whereas ecological refugees are generally created
as a side-effect of eco-crimes that are economically driven.Westra criticises the intent re-
quirement, arguing that a lower standard such as that of ‘wilful blindness’ should be
applied. However, as things stand, just as the requirement of establishing persecution
effectively denied ecological refugees the protection of the Refugee Convention, so the
specific intent requirement presently renders the Genocide Convention inapposite.
Westra suggests, therefore, that the broader category of crimes against humanity is
potentially more useful. Westra argues that crimes against humanity can be understood
as offences against mankind; and the scale of eco-crimes is such that they reach this
threshold. Eco-crimes,Westra suggests, are conducted by States or with their complicity,
in the full knowledge of the environmental and human harms they will cause. This is
demonstrative of a ‘cruel and inhuman indifference’ or ‘recklessness’ as to the plight of
the victims of eco-crimes who are mere obstacles to be overcome (p. 135). As crimes
against humanity carry the lower mens rea threshold of ‘knowledge of an attack’,
198 HRLR 11 (2011), 195^210
Westra implies that this condition is met by eco-crimes. Westra also notes that the case
law of the International Criminal Tribunal for the former Yugoslavia and the Rome
Statute of the International Criminal Court are illustrative of the flexible and increas-
ingly ‘catch-all’ nature of crimes against humanity that suggests that they could accom-
modate eco-crimes (p. 138).
Ultimately, what Westra advocates is either official recognition that crimes against
humanity have expanded to include eco-crimes and the human rights abuses caused
by them or the creation of a new category of international law to penalise eco-crimes
and to protect its victims. This proposal is perhaps intended to be illustrative of the
practical application of her proposed paradigm shift towards justice and fundamental
rights in international law. This shift is not only just, she argues, but also necessary in
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the face of migration driven by climate change. The sheer scale of the potential migra-
tion, Westra argues, will present States and international institutions with little choice
but to reform their migration practices. However, this argument is not fully developed.
Westra begins her conclusion (Chapter 7) by noting that the key problem facing hu-
manity is the primacy of capitalist logic and the search for endless growth, magnified
by the processes of globalisation under the auspices of the World Bank and World
Trade Organisation. Westra argues that these unjust policies have lead, inevitably, to cli-
mate change, resource depletion and ultimately the production of ecological refugees.
Unless the paradigm shift she advocates is implemented, Westra argues, the world
faces an unprecedented humanitarian and existential crisis. If we accept this analysis,
the question remains as to what form a just solution for ecological refugees would
take? This question is the subject of Westra’s conclusion.
Westra begins by analysing and rejecting proposals for the reform of the Refugee
Convention with a particular focus on Dana Folstrom’s proposal for a convention mod-
elled on the 1984 United Nations Convention Against Torture. Falstrom’s proposal
chimes with Westra’s analysis in that it would elevate refugee law to the level of a jus
cogens norm, demanding that its provisions be respected and benefiting from strong en-
forcement and monitoring mechanisms (pp. 186^88).2 However, these predominantly re-
active proposals are rejected as too limited in scope: first, they only address
cross-border migration and therefore are of no consequence to the vast majority of po-
tential ecological refugees; second, Westra’s focus on holistic notions of justice and eco-
logical integrity, the sheer scale of the potential problem and the sui generis nature of
the relationship between indigenous peoples’ and their land, all demand that preventa-
tive action is taken.
Westra finds a potential solution outside of the confines of refugee law. In Westra’s
view, the effects of eco-crimes are most often felt through their adverse impact on
human health. She contends, however, that the environmental aspects of human
health have largely been neglected in international law. Westra sees a solution in
Lawrence Gostin’s proposal for a Framework Convention on Global Health.3 The pro-
posed convention would be founded on the universal provision of basic survival needs.
Identified survival needs include ‘sanitation’, ‘clean air’, as well as ‘nutrition’ and medical
supplies, and would necessitate ‘health systems’ targeting ‘the prevention, detection and
mitigation of disease’ (emphasis added: p. 188). The prioritisation of survival needs can
2 Falstrom, ‘Stemming the Flow of Environmental Displacement: Creating a Convention to Protect Persons
and Preserve the Environment’ (2002) 13 Colorado Journal of International Environmental Law and Policy 1.
3 Gostin,‘Meeting Basic Survival Needs of the World’s Least Healthy People: Toward a Framework Convention
on Global Health’ (2008) 96 Georgetown Law Journal 445.
Book Reviews 199
be read as an application of Westra’s call for the prioritisation of fundamental rights as
well as providing a mechanism by which to prevent eco-crimes and therefore the cre-
ation of ecological refugees. Westra also contends that such a Framework Convention
would prevent States and multinational corporations alike from pleading ignorance to
the harm caused by their actions by highlighting the link between ecological harm
and human health.
In her final page, Westra comments on the 1998 Draft Convention on the
International Status of Environmentally Displaced Persons and its proposals for the cre-
ation of a World Agency for Environmentally Displaced Persons and a World Fund for
the Environmentally Displaced. Westra suggests that, if adopted, these proposals could
provide a great deal of protection for ecological refugees. Curiously, however, there is
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no development or analysis of these proposals which, having been briefly introduced
in Chapter 1 and recalled here, are merely reproduced as appendices without detailed
comment (Appendix 3).
There is much to welcome in Westra’s analysis, but there is also a general vagueness
about her conclusions. While Westra notes that a Framework Convention on Global
Health has the potential to be a powerful weapon, there is too little analysis of how
such a Convention could be created and would function. How is the global capitalist pri-
macy to be overturned and state enthusiasm for such a Convention generated? Is a
revolution being advocated or mere reform? Or to put it another way, if the fundamental
norms of international law are to be changed, is reform sufficient? This fuzziness is
not helped by the fact that Westra’s points are often in danger of being lost amidst the
verbose opacity of her written style:
Yet, notwithstanding the well-established links between environmental
causes and human migrations as effects, the ‘solution’ of reducing, miti-
gating or eliminating the practices that cause environmental degradation
with its expected results, Western countries still continue to view the
refugees that emerge from these ongoing disasters as ‘threats’, rather
than as victims of the environmental violence these states perpetrate
(p. 84).
While the point being made can be grasped, its expression seems almost designed to
conceal intent. If this can be said to be demonstrative of a stylistic problem, the follow-
ing is more indicative of editorial shortcomings: ‘Since 1990, however, the legal concept
of ‘complementary protection’ has had a history dating back to the League of Nations,
as the formal ‘refugee’ definition was found to be increasingly incomplete’ (p. 10).
Although the sentence can be made to make sense, the reader is forced to read not
what has been written but what they believe should have been written. It is perhaps
unfair to isolate sentences from their context, but the key point to be made is that far
from conveying the author’s intent, both the awkward written style and editorial fail-
ings serve to obscure it. The reader is almost required to translate the text, with the
result that there is a lingering sense of uncertainty as to whether key points are being
understood.
In a similar fashion, Environmental Justice is also let down by structural failings. It is,
at times, difficult to understand the logic behind the progression of Westra’s arguments.
While it should not be necessary to hold the reader’s hand as such, the narrative
thread is frequently in danger of being lost as issues and themes are addressed,
200 HRLR 11 (2011), 195^210
sometimes simultaneously, both within and across chapters and sections of the book.
For the sake of clarity, the text may have benefited from a more linear and distinct dis-
cussion of issues and themes. The fact that Westra’s own chapter synopses, contained
in the prologue, do not accurately represent their contents suggests that there were dif-
ficulties in finalising the structure of the book.
Without wishing to further labour the point, it must be noted that these stylistic and
structural issues, although not fatal to the value of the text as a whole, detract greatly
from its utility. As a result of these difficulties, I would suggest that this text is not suit-
able as an introduction to the difficult area of environmental displacement/migration.
However, the value of Westra’s text lies in the radical perspective that the author
brings to the subject. Westra, through her advocacy of justice as the source of the law’s
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validity, presents a challenge to the existing law, its practice and normative foundations,
and in so doing provides much timely and valuable food for thought for all students
and academics engaged in the field.
Kieren McGuffin
PhD Candidate
School of Law, University of Nottingham
doi:10.1093/hrlr/ngq047
Advance Access publication 3 February 2011
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Abdulaziz Sachedina, Islam and the Challenge of Human Rights (Oxford
University Press, New York, 2009, 272 pp., $35.00) ISBN 978-0-19-538842-8
(hb)
Abdulaziz Sachedina has set himself the noble but challenging task of searching for a
human rights system in the Islamic tradition, a system that would guarantee human
dignity and which would not conflict with the 1948 United Nations Universal
Declaration of Human Rights. Sachedina ‘endeavours to go to the foundational sources
of Islamic doctrines in the Quran and the Tradition [the Sunnah or the exemplary behav-
iour of the Prophet Muhammad] to demonstrate to its own membership [the Muslim
community] as well as the international community that it shares the universal lan-
guage of morality and human agency, including human dignity, to enhance its commit-
ment to the protection of human rights’ (pp. 14, 15). Sachedina aims to show that
‘Islamic doctrines share the universalism of human rights’and thus open ‘a real conver-
sation between the secularist and the Islamic notions of human agency and human dig-
nity for the protection of abused individuals’ (p. 15). Sachedina wants to critically
analyse the Muslim theological sources in order to propose ‘a fresh understanding of
Muslim theology to support universal human rights’ based on the ‘principle of inher-
ency and inalienability of the rights that accrue to all humans as humans’ (p. 15).
The goal of his research is ‘to identify and articulate Islamic foundational sources
that could establish a legitimate correspondence with secularly derived human rights’
(p. 35).
To achieve his goal, Sachedina has been successful in finding evidence in the Quran
of the notions of human dignity and plurality. He ably cites relevant verses of the
Quran to support his argument that human beings are born free and are capable of
understanding good and bad before committing themselves to any doctrine, religious
