Abstract

This chapter discusses the relevance of the 1951 Convention relating to the Status of Refugees (the Refugee Convention) in the context of disasters and climate change. It begins with an overview of the literature on the phenomenon itself, and then turns to the legal literature addressing the application of the Refugee Convention. After noting some early efforts to articulate inclusive arguments, attention focuses on three primary doctrinal reasons why the Refugee Convention has been considered to generally not apply in the context of disasters and climate change, namely the difficulties in establishing: (1) a well-founded fear: (2) of being persecuted; (3) for a Convention reason. Proposals for addressing the ‘protection’ gap are then canvassed, with particular emphasis on the Nansen Initiative. The final section of the chapter revisits the Refugee Convention and, drawing on recent jurisprudence from the New Zealand Immigration and Protection Tribunal (NZIPT) and insights from the fields of disaster risk reduction and disaster anthropology, articulates an approach to the determination of refugee status in which disasters are understood as social phenomena, where harm is conceived in relation to states’ positive obligations under international law, including the obligation of non-discrimination, and where vulnerability and exposure to disaster-related harm is recognised as being differential, at times for reasons of a person’s race, religion, nationality, membership of a particular social group or political opinion.