Climate justice for the displaced? The path to legal protection of the climate migrant

Abstract

The problem that concerns us does not result from a lack of recognition of the environmental cause as a trigger for migration, but from the provision of a legal personality of its own to the victims and the corresponding lack of prevalence of a system of prerogatives (normative and institutional) that assists the refuge of displaced persons who leave their place of origin forced by the uninhabitability induced by the effects of climate change. Given that climate change seems to have no place in the 1951 Refugee Statute or its 1967 Protocol, with the aggravating circumstance of the lack of an international institution that assumes responsibility for these migrants, we consider, in this work, ways to protect the “climate migrant”. Due to the lack of a specific Convention for those affected by the impacts of climate change, a legal vacuum is created, and, thus, it is necessary to look for other ways to provide legality and legal recognition, as a person fleeing from deteriorating ecosystems does not escape from their government, but rather is seeking protection in the countries that have contributed to climate change. Therefore, this research focusses on two premises to battle these inadequacies. On one side, by exploring the possibilities to provide legal coverage by means of adjusting the Refugee Statute, while, on the other side, by identifying new mechanisms to address this urgent need beyond existing Conventions. Regarding the first premise, we will reflect on whether the fact of seeking refuge from the impacts of climate change can reach the threshold of protection established in the existing jurisprudence, by reflecting on the real impact on human rights, types of compensation, and the role of developed countries as the main polluters, due to their historical emissions of greenhouse gases. Regarding the second premise, we know that there are alternative proposals, such as the Nansen initiative, the Peninsula Principles, and others, but what we discuss in this paper is that international human rights law constitutes a fundamental tool to overcome the legal vacuum in which climate migrants find themselves, especially when they cross international borders.