THE LEGAL LIMBO OF CLIMATE REFUGEES

ASSESSING THE LIMITATIONS OF THE 1951 REFUGEE CONVENTION AND POSSIBILITIES OF LEGAL RECOGNITION

Resumo

This paper examines whether individuals forcibly displaced by climate change could qualify as refugees under the 1951 Refugee Convention. Approximately 3.3 to 3.6 billion people live in conditions vulnerable to climate change, and predictions estimate that by 2050, a total of 1.2 billion people will become ‘climate refugees’. In this scenario, where climate change constitutes the ‘greatest threat’ to our society and climate refugees remain legally unrecognised, individuals forced to move across international borders will face an unprecedented uncertainty and vulnerability regarding their legal status. For this reason, this paper explores various possibilities for establishing an internationally accepted legal standard to protect individuals displaced by climate change, pushing towards a recognition of ‘climate refugees’. While the 1951 Refugee Convention does not explicitly recognise ‘climate refugees’, legal pathways exist to extend refugee status to individuals who have suffered climate-related harm. The primary objective of this paper is to determine whether climate change can act as a persecutor within the meaning of Article 1(A) of the 1951 Refugee Convention and whether it can be considered as an appropriate nexus ground. The research also aims to critically assess whether the human rights approach constitutes a possible legal alternative to refugee protection. By framing climate change as a threat to life, individuals experiencing climate-related harm could be protected under the principle of non-refoulement when returning them to their country of origin would expose them to a serious threat to their life. Finally, this paper examines the feasibility of implementing a system of subsidiary protection, modelled on the European Union's system, when climate change results in serious harm. This possibility is analysed in light of Article 3 of the ECHR, aiming to demonstrate that, in specific circumstances, climate change can amount to inhumane treatment. This paper employs a method of doctrinal legal research focusing on the analysis of the 1951 Refugee Convention and key cases in climate litigation, such as the Ionae Teitiota case. Furthermore, this paper compares how different regional courts have addressed the issue of climate-related harm, drawing on the approaches of the European Court of Human Rights in Duarte Agostinho and the Inter-American Court of Human Rights in Advisory Opinion OC-23/17. This paper concludes that ‘climate refugees’ are unlikely to be recognised under the Refugee Convention because climate change cannot be classified as a persecutor within the meaning of Article 1(A)(2) as it lacks a direct human link. The Human rights approach and subsidiary protection offer greater flexibility. While climate change can meet the threshold required for it to amount to a threat to life, the standard remains unattainable for victims of slow-onset disasters; consequently, it cannot represent a practical solution. Subsidiary protection can be regarded as the most desirable solution at the present stage, as the flexibility of the test required for inhumane treatment allows climate change to meet the necessary threshold. The issue of climate change and its disruptive impacts on individuals calls for the development of an international standard to protect the most vulnerable individuals.