"Unable to Return" in the 1951 Refugee Convention: Stateless Refugees and Climate Change

Abstract

The 1951 Convention Relating to the Status of Refugees [hereinafter "1951 Convention"] is the centerpiece of the current system of international protection and is almost unique in its level of acceptance by states. Its key definitional clause, article 1(A)2, extends refugee status to any person who; owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. It is widely believed that this passage extends refugee status only to persons with a well-founded fear of persecution. Since this is the central inclusion clause of the Convention, it is therefore widely believed that a well-founded fear of persecution is a necessary condition for status as a Convention refugee, for persons with a nationality as well as those without one. This view is expressed in the preponderance of contemporary scholarship, and it is often taken for granted in judicial interpretation and asylum practice. This view is so entrenched that, for example, the literature on whether climate change displacees might count as Convention refugees is primarily about whether climate change counts as persecution. Our aim in this paper is to challenge this standard interpretation in its application to some stateless persons. We shall argue that the clause of article 1(A)2 following the semicolon, the clause pertaining to stateless persons, makes room for a certain class of stateless refugees who are not persecuted. The issue turns on the interpretation of the phrase “unable to return.” According to the standard interpretation, “unable to return” applies in a very wide range of ordinary cases of statelessness, even to those whose inability is temporary. For this reason, proponents of the standard interpretation of the 1951 Convention assume that, despite the text failing to make this clear, some further restriction must apply to persons who lack a nationality and are unable to return if they are to count as refugees: they must in addition have a well-founded fear of persecution