Can regional refugee definitions help protect people displaced by climate change in Latin America?

Latin America and the Caribbean are particularly susceptible to natural hazards and climate-related disasters. Over the last few years, tropical storms have destroyed the coasts of the Caribbean; earthquakes have shaken Haiti; and Central American countries have been affected by hurricanes, droughts, and floods.

In November 2020, in the midst of the COVID-19 pandemic, two hurricanes hit the coasts of Central America. First, Hurricane Eta affected 3 million people in Central America, displacing more than 10,000 families. The hurricane damaged more than 16,000 homes in Honduras and Nicaragua and destroyed more than 220,000 hectares of crops. Second, less than two weeks later, Hurricane Iota hit the coasts of Nicaragua, forcing more than 50,000 people to flee their homes.

These hurricanes may be a sign of what is to come in a world experiencing climate change, including the scale of displacement that may accompany it. Climate change will increase both the intensity and frequency of sudden-onset events. It will also drastically impact the ability of the poor to earn a decent livelihood. Some studies find that rainfall will decrease by up to 60 percent; and water availability by as much as 83 percent in parts of the region.

Researchers also project that by 2070, yields of some regional staple crops will decline by nearly a third. Slow-onset events–such as sea-level rise, repeated storm surges, and prolonged droughts–may push more than 17 million people to migrate internally in Latin America by 2050. Another study finds that about 680,000 “climate migrants” might move from Central America and Mexico to the United States between now and 2050.

Limits to the 1951 Refugee Convention—and the Promise of Regional Refugee Definitions

The 1951 Convention relating to the Status of Refugees and its 1967 Protocol do not list climate change or environmental “disasters” as legitimate reasons for people to seek asylum. The definition of refugee in these instruments is narrow and based solely on a well-founded fear of persecution on five grounds: race, religion, nationality, membership of a particular social group or political opinion.

Despite the limited scope of protection set out in this traditional definition, environmentally displaced people in Latin America might find protection in the broader refugee definition set out in the 1984 Cartagena Declaration. This Declaration considers refugees those whose lives, freedom, and security are at risk due to “generalized violence, foreign aggression, internal conflicts, massive human rights violations, and other circumstances that have seriously disturbed public order.”

Although the Cartagena Declaration is not legally binding, most Latin American countries have adopted its broader refugee definition by incorporating its content within their domestic law – sometimes, with modifications– or through practice. Even the minority of countries that have not adopted it, have recognized its crucial role in protecting displaced persons in the region. This regional broader refugee definition has been also recognized by the Inter-American Court of Human Rights, and the General Assembly of the Organization of the American States.

It is important to note that national refugee agencies are in charge of interpreting the meaning and application of each of the situations included in the Declaration’s refugee definition. Existing good practices of some countries in the region are worth mentioning, such as Mexico and Brazil, which have granted refugee status under the broad definition of the Declaration to more than 12,000 and 46,000 Venezuelan refugees, respectively.

Climate-related Disasters as “circumstances that have seriously disturbed the public order”?

Until very recently, it was unclear whether environmental displaced persons in Latin America could find protection in this broad refugee definition; more specifically, whether natural hazards or climate change-related disasters could be considered as “circumstances that have seriously disturbed the public order.”

There is little public information about the interpretation that national refugee agencies have done in regard to this phrase; nonetheless, no country in the region has interpreted it to grant refugee status based on the effects of climate change and disasters. This situation, however, could change in the near future.

In October 2020 the United Nations High Commissioner for Refugees (UNHCR) issued the Legal Considerations regarding claims for international protection made in the context of the adverse effects of climate change and disasters, in which it established that “people displaced by the adverse effects of climate change and disasters can be refugees under regional refugee criteria,” providing to that purpose legal guidance to governments when interpreting climate change-related disasters as “circumstances that have seriously disturbed the public order.”

In this regard, the UNHCR concluded that it is irrelevant whether the source that perturbs the public order derives from natural causes or if it is a man–made event (in fact, in such complex situations, is it difficult to allocate responsibility). The key in making a decision regarding eligibility of the refugee status under this specific ground is whether the effective functioning of the State, the rule of law, and human dignity have been seriously affected. If there is an impact on the asylum seekers’ place of habitual residence that forces them to leave their country of origin, and if the State in question and the international community are unwilling or unable to address such impact, then, the displaced person could be eligible for refugee status under the Cartagena Declaration’s definition.

Using the Cartagena Declaration Moving Forward

The refugee definition contained in the Cartagena Declaration can provide those displaced by climate change and disasters in Latin America with a framework to access the refugee status; thus, it is a window of opportunity to protect them. The protection offered by this regional definition, however, still depends on the political will of the countries that have adopted it.

Along with the legal interpretative challenge of determining whether those effects amount to severe disturbances of public order, some countries in the region adopted the Declaration’s definition but modified or eliminated some of the causes to seek refugee contained in the Declaration’s original text. The differentiated adoption of the Declaration’s definition throughout the region narrows the protection offered both, nationally and regionally, to displaced people by reducing the catalog of legitimate situations that allow displaced people to secure protection.

Despite these challenges, there are reasons to remain optimistic. In 2018, the UNHCR prepared a study on environmental cross border displacement in Latin America and the Caribbean. This study, as well as the UNHCR Legal Considerations mentioned above, and the legal analysis of the refugee regional criteria published by the UNHCR in early 2020, are policy and legal frameworks that could serve as the platform for further regional agreements. The 2024 commemorative event of the Cartagena Declaration may be an opportunity for states to make bigger commitments and to take a step further in adopting permanent solutions for climate-displaced people. If states can commit to taking these steps people displaced by climate will have greater opportunities to seek international protection.