by Jessica Johnson

 

The Right to the Environment of El Salvadoran Recipients of TPS

In January and February 2001, two massive earthquakes decimated the country of El Salvador, causing the devastation of land and homes as well as economic strife. After the disaster, the United States granted El Salvadoran nationals Temporary Protected Status (“TPS”), a status designated to a country suffering from a natural disaster, war, or other extraordinary circumstances that prevent nationals from residing there safely. The status has been periodically extended, as is permissible under the statute while poor conditions persist.[1]

In March 2018, President Donald Trump announced the end of Temporary Protected Status (“TPS”) for over 200,000 El Salvadoran immigrants to the United States. Trump’s justification for deporting hundreds of thousands of El Salvadorans is that “original conditions caused by the 2001 earthquakes no longer exist”, coupled with a persistent desire to tighten border security.[2] However, the U.S. renewed the status in 2016 and cited to ongoing effects of the earthquakes, including severe drought impacting food security, economic loss due to inability to harvest, infrastructure challenges, a lack of potable water, and resulting strife and violence stemming from these problems.[3] Without the political stability and security needed to deal with these environmental issues, they persist today.[4]

 

In addition, climate change in El Salvador exacerbates the decimation from these earthquakes. Rising sea levels have destroyed villages, and this coupled with the loss of coastal territory essential to the fishing and farming economy provide incentive to migrate.[5] El Salvadorans cannot invest their lives in the land they have no long-term rights to.[6] El Salvadorans residing in the U.S. who cannot obtain legal status have no safe options left – either they remain here undocumented or go home, where both the aftermath of the earthquakes and climate change factors exacerbate the unhealthy environment. Returning to El Salvador violates their human right to a safe and healthy environment under several international customs and treaties. To determine where their rights come from, it is important to examine whether the U.S. has a duty to uphold this right for El Salvadoran recipients of TPS.

I.               Environmental Rights Violated

Forcing TPS recipients to return to the situation in El Salvador would violate many human rights to the environment that the U.S. subscribes to in ratified treaties. The Universal Declaration of Human Rights (UDHR), the stable of international custom on human rights, recognizes the right to life and the right to adequate standard of living, food, health, housing as universal human rights.[7] These rights have been consistently recognized as necessary for the enjoyment of a healthy environment.[8] El Salvadorans could certainly refer to these principles in asserting their need to remain protected in the U.S., but as far as enforcement goes, U.S. ratified treaties are more binding. One of these, the International Covenant on Civil and Political Rights (ICCPR), also recognizes the right to life.[9] El Salvadorans could argue that being forced to return to an area still decimated from natural disasters impedes this right. Water contamination and general inaction to gangs controlling water resources could likely threaten their life and livelihood.[10] In a previous concluding observation for Israel, the Human Rights Committee tasked with enforcement of the ICCPR noted water pollution as a concern regarding the right to life.[11] However, unfortunately the Committee has never ordered or concluded that environmental issues threaten the right to life.[12]

 

United Nations reviews and resolutions are also persuasive to a violation of El Salvadorans’ human right to the environment. The UN Universal Periodic Review process assesses examples of how human rights obligations are fulfilled around the globe, and has discussed environmental rights. For example, a review of Greece referred to an infringement of the right to life from environmental impacts generally caused by “cases of natural and man-made disasters”, which El Salvadorans could use to further their argument that the persisting degradation of their agriculture, water and infrastructure as a result of the earthquakes violates their right to life.[13] General Assembly resolutions also lend important legal principles to the El Salvadoran cause. The GA asserted the right to food as an environmental right, linking food crisis to natural disasters and the lack of ability for developing countries to sufficiently deal with this impact.[14] The resolution asserts global cooperation with those in need, and El Salvadoran recipients of TPS could assert that the U.S. should cooperate and help instead of sending recipients back and making the economic and environmental situation worse.

II.             U.S. Duty to Protect TPS Recipients’ Environmental Rights

While El Salvadoran recipients of TPS may have arguments as to the infringement of their right to the environment, they may have a tougher time proving the U.S. has a duty to protect, respect, and fulfill these rights for nationals of another state. Under the ICCPR, the U.S. has the obligation to enforce human rights for “all individuals within its territory”, but can make a distinction as long as it is legitimate and proportionate (and federal plenary power over immigration would pass this standard).[15] The UN resolution on the human rights of migrants provides that states should foster international cooperation to provide assistance to migrants and facilitate access to migration. States are also encouraged to “contribute to the prosperity of countries of origin” of migrants.[16] El Salvadorans, in pointing to this resolution, could argue that the U.S. has a duty to protect the human rights explicated in the aforementioned treaties and principles through the facilitation of their migration and prolonging their TPS status.

Even further, recipients could rally for refugee status under the Refugee Convention. Under the terms of this convention that apply to the U.S. after their ratification of the 1967 Protocol, recognizes the duty of non-refoulment – the custom of not forcing refugees to be returned to a country in which they would likely suffer persecution.[17] Unfortunately, the Refugee Convention recognizes politically persecuted refugees – but not environmental refugees.[18] El Salvadorans would likely not succeed in arguing that the suffering upon return warrants refugee protection, as lack of food, water, and healthy living environment are not persecutions of a political nature. The only remedy would be for the Refugee Convention to extend to environmental refugees. The protections for political refugees imply a right a safe and sustainable life, and extending protections to environmental refugees would protect this right for those displaced due to drought, agricultural disruption, and environmental and natural disasters. This would function as a major solution for the El Salvadoran recipients of TPS, as both non-refoulment and more permanent immigration protections would apply to those who would face environmental human rights violations.

Overall, El Salvadorans have been living under U.S. protection for seventeen years, and human rights principles foster the obligation to fulfill the rights of those within the state through possible and reasonable means. Instead of getting rid of TPS, U.S. should cooperate with El Salvador in fixing their environmental crisis as a long-term and human rights friendly way to reform immigration policy.

 

Citations

[1] 8 U.S.C.S. § 1254a (2018).

[2] Miriam Jordan, Trump Administration Says That Nearly 200,000 Salvadorans Must Leave, New York Times (8 January 2018), available at https://www.nytimes.com/2018/01/08/us/salvadorans-tps-end.html; see also Exec. Order No. 13767, 82 FR 8793 (30 January 2017).

[3] Department of Homeland Security, Extension of the Designation of El Salvador for Temporary Protected Status, 81 Fed. Reg. 44645 (8 July 2016).

[4] Refugees International, Temporary Protected Status for El Salvador: Findings of a Refugees International Research Mission (December 2017), available at https://static1.squarespace.com/static/506c8ea1e4b01d9450dd53f5/t/5a3c22fc71c10b9c1acf3b2a/1513890558720/RI_El+Salvador_Policy+Brief-Final.pdf.

[5]Simeon Tegel, El Salvador in battle against tide of climate change, Independent (18 September 2012), available at https://www.independent.co.uk/environment/climate-change/el-salvador-in-battle-against-tide-of-climate-change-8145210.html.

[6] Chris Jochnick, Secure Land Rights And Climate Change Resilience Go Hand In Hand: Here’s Why, Thomas Reuters Foundation News, (2 June 2016), available at https://www.landesa.org/blog-secure-land-rights-climate-change-resilience-go-hand-in-hand/.

[7] Universal Declaration of Human Rights, art. 3, 25, Dec. 10, 1948, 217 A (III).

[8] See Stockholm Declaration, U.N. Doc. A/Conf.48/14/Rev. 1(1973); 11 ILM 1416 (1972).

[9] International Covenant on Civil and Political Rights, art. 6, Dec. 16, 1966, 999 U.N.T.S. 171 (1966).

[10] See supra note 3.

[11] Concluding observations of the Human Rights Committee for the Ninety-ninth session, Israel, 3 September 2010, U.N. Doc. CCPR/C/ISR/CO/3, para 18.

[12] UNHCR, Mapping Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment: Individual Report on the International Covenant on Civil and Political Rights, December 2013, A/HRC/25/53.

[13] UNHCR, Mapping Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment Individual Report on the UN General Assembly and the Human Rights Council, including the Universal Periodic Review Process, December 2013, A/HRC/25/53 at FN 70.

[14] General Assembly Resolution 67/174, 3 April 2013, U.N. Doc. A/RES/67/174.

[15] UNHCR, The Rights of Non-Citizens, 2006, HR/PUB/06/11, available at https://www.ohchr.org/documents/publications/noncitizensen.pdf.

[16] General Assembly Resolution 29/2, 22 July 2015, U.N. Doc. A/HRC/RES/29/2.

[17] UN General Assembly, Convention Relating to the Status of Refugees, 189 U.N.T.S. 137, Art. 33 (28 July 1951).

[18] UN General Assembly, Convention Relating to the Status of Refugees, 189 U.N.T.S. 137, 147 (28 July 1951).

 

 

Jessica Johnson is a third-year law student at Northeastern University School of Law. She has a concentration in International Law and Human Rights, and plans to dedicate her career to defending the rights of immigrants. Current issues in refugee and asylum law gave rise to her passion. Jessica produced this blog as an assignment for the course Human Rights and the Environment, Development, and Community Resilience.