Authored By: Shylet Nyamupinga
MVN university
Introduction
Climate change is no longer merely an environmental concern; it has become one of the most pressing human rights and migration challenges of the twenty-first century. Rising sea levels, prolonged droughts, desertification, cyclones, and floods are increasingly forcing people to abandon their homes and livelihoods. According to international estimates, millions may be displaced by climate-related events annually, creating unprecedented challenges for states and international institutions. Yet, despite the growing scale of climate-induced displacement, international refugee law remains largely unequipped to address this phenomenon.
The principal framework governing refugee protection is the Convention Relating to the Status of Refugees, 1951 (‘Refugee Convention’).¹[1] Drafted in the aftermath of the Second World War, the Convention was designed to protect individuals fleeing persecution on specific grounds such as race, religion, nationality, membership of a particular social group, or political opinion.²[2] Environmental degradation and climate-related disasters were not contemplated by the drafters and therefore remain outside the Convention’s explicit scope.
This legal gap has generated significant debate regarding the status of individuals displaced by climate change, often referred to as “climate refugees”. While the term has gained widespread acceptance in academic and policy discussions, it possesses no formal legal recognition under international law. Consequently, persons displaced by climate-related events frequently fall outside the protection mechanisms available to conventional refugees.
This article argues that the existing refugee protection regime is inadequate to address contemporary climate-induced displacement. It examines the limitations of the Refugee Convention, analyses emerging judicial approaches to climate displacement, evaluates comparative international responses, and proposes reforms aimed at creating a more inclusive and effective protection framework.
The Existing International Legal Framework
A. The 1951 Refugee Convention
The Refugee Convention remains the cornerstone of international refugee protection. Article 1A(2) defines a refugee as a person who possesses a well-founded fear of persecution owing to race, religion, nationality, membership of a particular social group, or political opinion and who is unable or unwilling to avail themselves of the protection of their country.³[3]
This definition presents a significant obstacle for climate-displaced persons. Unlike traditional refugees, individuals fleeing environmental degradation are generally not escaping persecution by a state or non-state actor. Instead, they are responding to natural or climate-related processes that threaten their safety and livelihoods.
The requirement of persecution has therefore become the principal barrier to recognizing climate refugees under international law. Courts and decision-making bodies have consistently interpreted the Convention narrowly, limiting protection to situations involving identifiable persecutory conduct.⁴[4]
B. Human Rights Law as an Alternative Source of Protection
Although climate-displaced persons may not qualify as refugees, international human rights law offers certain protections. The International Covenant on Civil and Political Rights (‘ICCPR’) guarantees the right to life and protects individuals against arbitrary deprivation of that right.⁵[5]
Increasingly, international bodies have recognized that severe environmental degradation may threaten fundamental human rights. Climate change can affect access to food, water, housing, healthcare, and cultural identity. Consequently, human rights law has emerged as an important supplementary mechanism for addressing climate displacement.
However, human rights law suffers from significant limitations. It does not establish a dedicated framework for cross-border admission, resettlement, burden-sharing, or long-term legal status. As a result, protection remains fragmented and uncertain.
Case Law Analysis
A. Ioane Teitiota v New Zealand
The most influential judicial decision concerning climate displacement is Teitiota v New Zealand.⁶[6]
Ioane Teitiota, a citizen of Kiribati, argued that rising sea levels, environmental degradation, overcrowding, and freshwater scarcity rendered his return unsafe. He claimed that deportation from New Zealand would violate his right to life under the ICCPR.
The United Nations Human Rights Committee rejected his claim on the facts but made a landmark observation. The Committee recognized that environmental degradation and climate change could expose individuals to conditions incompatible with the right to life.⁷[7] It further acknowledged that states may, in certain circumstances, be prohibited from returning individuals to countries where climate-related conditions create a foreseeable risk to life.
Although Teitiota did not establish climate refugee status under the Refugee Convention, it marked an important evolution in international legal thinking by linking climate change directly to human rights protection.
B. Billy and Others v Australia
A further significant development occurred in Billy and Others v Australia.⁸[8]
The applicants, Indigenous inhabitants of the Torres Strait Islands, alleged that Australia’s inadequate climate policies threatened their homes, culture, and way of life. The Human Rights Committee found that Australia had violated its obligations under the ICCPR by failing to adequately protect the island communities from foreseeable climate-related harm.⁹[9]
The decision demonstrated the increasing willingness of international bodies to hold states accountable for climate inaction where human rights are jeopardized
Critical Evaluation: Why the Refugee Convention is Inadequate for Climate Displacement
A. The Persecution Requirement
The principal weakness of the Refugee Convention in the context of climate displacement lies in its requirement that an applicant demonstrate a well-founded fear of persecution.¹⁰ [10]Traditionally, persecution involves serious violations of human rights attributable to state authorities or non-state actors whom the state is unwilling or unable to control.
Climate change, however, does not fit neatly within this framework. Rising sea levels, droughts, hurricanes, and environmental degradation are not acts of intentional persecution. Instead, they are consequences of complex global processes involving multiple actors across different jurisdictions. Consequently, climate-displaced persons often fail to satisfy the threshold requirements for refugee status despite facing equally severe threats to their survival.
This creates a troubling inconsistency. An individual fleeing political persecution may obtain international protection, while a person escaping the permanent submergence of their homeland may receive no comparable legal status. Such distinctions increasingly appear artificial in light of contemporary humanitarian realities.
B. The Challenge of Causation
Another difficulty arises from the challenge of identifying climate change as the sole cause of displacement. Migration decisions are rarely driven by a single factor. Environmental pressures frequently interact with poverty, weak governance, resource scarcity, and social instability.¹¹[11]
For example, prolonged drought may destroy agricultural productivity, leading to economic hardship and eventually migration. Determining whether the movement occurred because of climate change, economic necessity, or governmental failure can be legally complex.
This multifaceted nature of climate migration has often been used as a justification for excluding climate-displaced persons from refugee protection. Nevertheless, the presence of multiple contributing factors should not diminish the reality that climate change increasingly acts as a primary driver of displacement.
C. Climate-Induced Statelessness
Perhaps the most significant challenge concerns the potential disappearance of entire territories due to rising sea levels. Small island developing states such as Kiribati, Tuvalu, and the Marshall Islands face existential threats from climate change.¹²[12]
If substantial portions of these territories become uninhabitable or submerged, questions emerge regarding nationality, sovereignty, and legal identity. International law currently provides limited guidance on the status of populations displaced by the complete loss of territory.
The Refugee Convention offers no solution to this problem because the affected populations may not be fleeing persecution. Instead, they risk becoming permanently displaced without a clear legal framework governing their rights and obligations.
D. A Growing Protection Gap
The cumulative effect of these shortcomings is the emergence of a significant protection gap within international law. Refugee law excludes most climate-displaced persons, while human rights law offers only limited remedies. Immigration law, meanwhile, remains largely dependent on the discretion of individual states.
As climate change accelerates, this protection gap is likely to affect millions of individuals worldwide. The continued reliance on legal frameworks developed in the mid-twentieth century may therefore prove increasingly unsustainable.
Comparative Perspectives and Emerging Approaches
A. The African Union’s Expanded Refugee Definition
The Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa adopts a broader approach than the Refugee Convention.¹³[13]
Under the OAU Convention, refugee status may extend to persons compelled to leave their country owing to events seriously disturbing public order. Although climate change is not expressly mentioned, the broader wording demonstrates that refugee definitions can evolve to address emerging forms of displacement.
This model offers valuable lessons for future reforms of international refugee law.
B. The Cartagena Declaration
Similarly, the Cartagena Declaration on Refugees broadens protection beyond traditional persecution-based grounds.¹⁴[14] The Declaration includes individuals fleeing circumstances that seriously threaten their lives, safety, or freedom.
Although not legally binding, the Cartagena framework has influenced domestic refugee laws throughout Latin America and illustrates how regional instruments can respond more flexibly to contemporary humanitarian challenges.
C. New Zealand’s Climate Mobility Initiatives
New Zealand has repeatedly explored migration pathways for populations vulnerable to climate change, particularly those from Pacific Island states. While proposals for a dedicated climate refugee visa have not yet been fully implemented, they represent an acknowledgment that conventional refugee law may be insufficient.¹⁵[15]
Such initiatives suggest that states can develop alternative humanitarian mechanisms without fundamentally altering the Refugee Convention itself.
D. The European Union’s Complementary Protection Framework
Several European states provide subsidiary protection to individuals who do not qualify as refugees but nevertheless face serious harm if returned to their countries of origin.¹⁶[16]
Although climate-related claims have generally been unsuccessful under this framework, the model demonstrates the possibility of extending international protection beyond the traditional refugee definition.
Proposals for Reform
A. Expanding the Scope of the Refugee Convention
One approach would involve amending the Refugee Convention to include climate-induced displacement within its definition of refugee status.
Such reform would provide the strongest form of legal protection. However, reopening negotiations on the Convention presents significant political challenges. Many states fear that revisiting the treaty could weaken existing refugee protections rather than expand them.
B. Creating a Dedicated Climate Displacement Treaty
A more practical solution may involve negotiating a separate international agreement specifically addressing climate displacement.
Such a treaty could establish:
A clear definition of climate-displaced persons;
Procedures for admission and relocation;
Burden-sharing mechanisms among states;
Long-term residency and citizenship pathways;
Protection against forced return to environmentally unsafe regions.
A dedicated framework would allow states to address climate displacement without altering the existing refugee regime.
C. Strengthening Human Rights-Based Protection
The decisions in Teitiota and Billy demonstrate the growing relevance of human rights law in climate-related cases. Future judicial developments may further strengthen protections by recognizing severe environmental degradation as a threat to fundamental rights.¹⁷[17]
Courts should continue interpreting the right to life, dignity, housing, food, water, and cultural identity in ways that reflect the realities of climate change.
D. Enhancing Regional Cooperation
Regional arrangements may offer the most politically feasible avenue for immediate progress. Neighboring states often face similar environmental challenges and can develop coordinated responses tailored to local circumstances.
Regional mobility agreements, humanitarian visas, and relocation programmes may prove particularly effective in areas vulnerable to climate-related displacement.
Conclusion
Climate change has transformed displacement into one of the defining legal challenges of the modern era. Rising sea levels, extreme weather events, desertification, and environmental degradation are forcing increasing numbers of individuals to abandon their homes, yet international refugee law remains rooted in assumptions developed more than seventy years ago.
This article has demonstrated that the 1951 Refugee Convention, despite its enduring significance, is ill-equipped to address climate-induced displacement. The Convention’s persecution requirement excludes most climate-displaced persons, creating a substantial protection gap. Judicial developments such as Teitiota v New Zealand and Billy and Others v Australia reveal an emerging recognition that climate change implicates fundamental human rights, but these developments remain insufficient to provide comprehensive protection.
The growing scale of climate migration demands innovative legal responses. Whether through amendments to existing refugee law, the adoption of a dedicated climate displacement treaty, or the expansion of human rights-based protections, international law must evolve to meet contemporary realities. Failure to do so risks leaving millions without adequate protection in the face of one of the greatest humanitarian crises of the twenty-first century.
Bibliography
Cases
AF (Kiribati) v Secretary of State for the Home Department [2014] EWCA Civ 151.
Billy and Others v Australia (Human Rights Committee, Communication No 3624/2019, 22 September 2022) CCPR/C/135/D/3624/2019.
Teitiota v New Zealand (Human Rights Committee, Communication No 2728/2016, 7 January 2020) CCPR/C/127/D/2728/2016.
Urgenda Foundation v State of the Netherlands (Supreme Court of the Netherlands, 20 December 2019) ECLI:NL:HR:2019:2007.
Treaties and International Instruments
Convention Relating to the Status of Refugees (1951) 189 UNTS 137.
International Covenant on Civil and Political Rights (1966) 999 UNTS 171.
Protocol Relating to the Status of Refugees (1967) 606 UNTS 267.
Cartagena Declaration on Refugees (1984).
OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969) 1001 UNTS 45.
Books
Hathaway JC and Foster M, The Law of Refugee Status (2nd edn, CUP 2014).
McAdam J, Climate Change, Forced Migration and International Law (OUP 2012).
Mayer B, The Concept of Climate Migration (Edward Elgar Publishing 2016).
Journal Articles
Hodgkinson D, Burton T, Anderson H and Young L, ‘The Hour When the Ship Comes In: A Convention for Persons Displaced by Climate Change’ (2010) 36(1) Monash University Law Review 69.
[1] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137
[2] Ibid art 1A(2)
[3] ibid
[4] James C Hathaway and Michelle Foster , The Law of Refugee Status (2nd end, CUP2014) 177-182
[5] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 art 6.
[6] Teitiota v New Zealand (Human Rights Committee, Communication No 2728/2016, 7 January 2020) CCPR/C/127/D/2728/2016.
[7] ibid [9.11]–[9.12].
[8] Billy and Others v Australia (Human Rights Committee, Communication No 3624/2019, 22 September 2022) CCPR/C/135/D/3624/2019.
[9] ibid [8.13]–[8.15].
[10] Convention Relating to the Status of Refugees (n 1) art 1A(2).
[11] Jane McAdam, Climate Change, Forced Migration and International Law (OUP 2012) 27–31.
[12] Benoît Mayer, The Concept of Climate Migration (Edward Elgar Publishing 2016) 84–86.
[13] OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45 art I(2).
[14] Cartagena Declaration on Refugees (Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, Cartagena, Colombia, 22 November 1984) Conclusion III(3).
[15] Jane McAdam, ‘Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-Refoulement’ (2020) 114 AJIL 708, 714.
[16] Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 [2011] OJ L337/9.
[17] Teitiota v New Zealand (n 6) [9.11]–[9.12]; Billy and Others v Australia (n 8) [8.13]–[8.15].
