Although conventional wisdom accepts that the refugee status is given to the victims, which
performed through the mass influx, with the consequence of outbreak war, counter-intuitive;
The definition made by article 1A of The 1951 Geneva Convention Relating to the Status of
Refugees, also has ratified by Turkey, provides a definition of refugee status which had gotten
into difficulty including war. Glancing at the provisions in the first article of the convention:
For the purposes of the present Convention, the term “refugee” shall apply to any person who:
(2) As a result of events occurring before 1 January 1951 and 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 as a result of such events, is unable or, owing to
such fear, is unwilling to return to it. In the case of a person who has more than one nationality, the
term “the country of his nationality” shall mean each of the countries of which he is a national, and a
person shall not be deemed to be lacking the protection of the country of his nationality if, without any
valid reason based on well-founded fear, he has not availed himself of the protection of one of the
countries of which he is a national.
Seems that it has been defined in this manner. The definition in this provision, adopted by
194 countries, can be analysed in two parts for the aim of making it more comprehensible:
- The well-founded fear of persecution of a person because of his/her race, religion,
nationality, membership of a particular social group, or political ideas.
According to the inspected first article, the fear of the persecution that a person may suffer
because of his/her beliefs or characteristics which are not his/her own choice should not be
groundless. Due to there is no definition in the convention for well-founded fear, the court
will decide on the existence of well-founded fear with his logic and listening to the voice of
conscience based on the concrete case.
When asked about the sufficiency of the first article Lochak (2013) answers this question as
follows, “…the fear of persecution is therefore not, as is the case in the Geneva Convention,
the only legitimate reason for not claiming the protection of a country or refusing to return to
it.” (p.33). Thus, for the existence of the refugee status, the existence of the article which we
will examine below is essential.
- The person who has well-founded afraid of persecution should be outside of the
country of her citizenship and there should be a situation that prevents his/her from
enjoying the protection of his/her country or a fear which is the cause of the rejection
to enjoy the protection.
According to the inspected second article, in order for the individual to gain refugee status;
with the existing in a country aside from the country of nationality, it is seen that the situation
of (can)not benefiting from the protection of the country of which she is a citizen is being
In the aforementioned article, persons who are not citizens of a country are accepted as
“stateless” in doctrine and supreme court’s decisions and be accepted as they are enjoying the
protection of the state in which they reside in.
In order to obtain refugee status, the two conditions that have been separated above must be
taken part cumulatively.
Unless there is not any reservation by the parties to the definition in Article 1A of The Geneva
Convention, the refugee status of the asylum seekers who are the victims of war is a crystal-
clear fact. However, while we pan across to asylum seekers that are victims of climate events,
it seems that this issue found a wide area of discussion in doctrine.
The status of climate refugees has defined by Angela Williams (2008) as, abandoning the homeland in order to emigrate to the countries with better living conditions virtue of the existence of permanent or temporal effects of the environmental factors (p.506). UNHCR interiorizes neither the climate refugee nor environmental refugee terms, she has the
opinion that these terms have not a place among international refugee law terms. One of the topics of the point in question is, ‘The Decision of The New Zealand Refugee Status Appeals Authority Regarding Refugee Status Not Acquiring Due to Economic and Environmental Factors’. The situation of the refugee applications numbered 72189 to 7195/200 is as below:
Seven applicants named in the enumerated cases; is a family consisting of a mother, father, and their
five children…Each of the applicants has individually applied for refugee status, and they get rejected
after the interview. The designated authority to apply states that, each applicant’s fear was essentially
the same. Their fear is the environmental and economic difficulties they had encountered in their
hometown, Tuvalu. The ground of the rejection by the designated authority is, the reason of the
applicants’ fear does not rate among the five elements which are because of her/his race, religion,
citizenship, membership of a particular group, or political opinion that have regulated in the 1951
Convention. The designed authority has detected that; because of the fact that the citizenry of the
Tuvalu is encountering the same challenges, it is impossible to admit that they are at the risk of being
persecuted for one of five reasons.
After a while, the applicants sued the designated authority to apply due to their decision. The defence of the applicants is as follows: Applicants claim that their assets in Tuvalu were partially submerged due to the rise of the sea level there and for this reason, they were also damaged by coastal erosions on that part of the island.
Another claim is, there is a shortage of potable water and medicine and so there is a challenge to meeting basic needs. They stated that; as it is understood from the aforementioned situations, Tuvalu
is not liveable.
Besides, the applicants alleged that; there is a small fraction of the population are enjoying good life
standards which is because of their proximity to the government in Tuvalu, and they have never been
subjected to ill-treatment by the authorities.
In the defence in question, they also stated, the possibility of being persecuted is due to their belonging
to a low socio-economic group. On the other hand, the court regarded each applicant’s demand as,
manifestly ill-founded and abuse. Hence, the court rejected their demand.
Primarily, it must be pointed out that, New Zealand had ratified the definition of the 1951
Refugee Convention as it is. In contrast to Tukey, she had not made any geographical
reservation to the Convention. Thus, the applicants do not encounter an obstacle regarding
In substance, applicants’ acquisition of refugee status depends solely on the existence of the
conditions which has contained in the Convention’s provisions. In the decision of the
Supreme Court in question, the fear of the applicants has not accepted well-founded.
As stated earlier, there is no sampling procedure for the award. The judicial bodies stay with
their conscience and logic tete-a-tete, but the decisions of the Supreme Courts which we accept as a guiding spirit, almost all of them, reject the demands of climate refugees because their claims have been found ill-founded.
As can be seen from the decision; besides the victimization created by the environmental
conditions, according to the applicants’ claim, the citizens which are close to the government
in power are affected by the conditions as least as possible.
The regime of Tuvalu State is defined as parliamentary democracy (parliamentary monarchy), in other words, seats of the legislative organ are being filled by the deputies which had been elected by the public; on the other hand, the executive organ is being represented by Queen Elizabeth. In this case, what is meant by ‘the government in power’ is most likely those who
maintain the majority in the legislative organ. That is to say, the citizens who see the persecution in their homeland, the applicants of the refugee status, are the minority. There is not any explanation that the allegations have been examined, it was just said that (by the court) the citizens are suffering from the existing state. It can be said that if the allegation in
question is justified, admittedly the applicants had a well-founded fear in the way that they would be persecuted for their political opinions; because of the government’s disclaimer to protect its own citizens because of their political thoughts and refusal providing the meeting basic needs of the citizens who have an opposing view. Also, according to IPCC reports, the island has been supposed to be completely submerged in the near future such as 2050; this must be considered a persecution danger of impending disaster.
If the claims of the applicants regarding the government in power are groundless; even if the
victimization of applicants due to environmental conditions is interpreted as broadly as an
analogy to any award, it is not possible for applicants to be granted refugee status by virtue of
it cannot be mentioned that there is one of the five reasons regulated in Geneva Convention.
However, if the Temporary Protection Directive might be ‘broadly interpreted’ by New
Zealand, climate refugees can be protected in this context.
In such cases those the rising of the victimizations and the dangers targeting the masses which
had scientifically proven, it can be apprehensible for the Supreme Court decisions examined
above and many similar court decisions that; the incompleteness of the international
conventions related to this situation creates and may create long-term aggrievements for the
citizens of the country where the victimization is located and stateless people.
- Climate change, natural disasters and human displacement: a UNHCR perspective, António Guterres, UN High Commissioner for Refugees, 14 August 2009, s. 8-9: http://www.unhcr.org/4901e81a4.pdf (31.7.2016).
- EKŞİ, N., İklim Mültecileri, GÖÇ ARAŞTIRMALARI DERGİSİ, 2(2) ss. 10-58, Temmuz- Aralık 2016 http://gam.gov.tr/files/nuray-eksi.pdf
- EKŞİ, N., Yeni Zelanda Mülteci Statüsü Belirleme İtiraz Mercii’nin Ekonomik ve Çevresel Faktörler Sebebiyle Mülteci Statüsünün Kazanılamayacağına İlişkin Kararı, İstanbul Kültür Üniversitesi Hukuk Fakültesi Dergisi, 10(1), 219-224
- HARRIET FARQUHAR, “Migration with Dignity”: Towards a New Zealand Response to Climate Change Displacement in the Pacific, Victoria University of Wellington, 2014 https://researcharchive.vuw.ac.nz/xmlui/bitstream/handle/10063/4302/thesis.pdf?sequence=2
- LOCHAK Daniéle, Qu’est-ce qu’un Réfugié ? La Construction Politique d’une Catégorie Juridique, (2013), Les Réfugiés https://www.cairn.info/revue-pouvoirs-2013-1-page-33.htm
- McADAM Jane, Swimming against the Tide: Why a Climate Change Displacement Treaty is Not the Answer, 23(2011)1 IJRL, s. 8. https://researcharchive.vuw.ac.nz/xmlui/bitstream/handle/10063/4302/thesis.pdf?sequence=2
- Prof. Dr. M. Tevfik ODMAN, Tarihsel Gelişim Sürecinde Güncelleştirilmiş Mülteci Hukuku (Dünya’da ve Türkiye’de İlticanın Gelişim Süreci), Ankara, 2020
- Prof. Dr. Nuray EKŞİ, Yabancılar ve Uluslararası Koruma Hukuku, İstanbul, 2018
- WILLIAMS Angela, Turning the Tide: Recognizing Climate Change Refugees in International Law, 30(2008)4 Law&Policy. https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1467-9930.2008.00290.x