The Case for Legal Recognition and Protectionunder International Law

Introduction

When a farmer in Niger abandons his cracked, barren land because the desert has swallowed his crops, international law has little to say about him. When families in Kiribati or Tuvalu pack their belongings knowing their island may soon disappear under the sea, the law offers no status, no safe passage, no promise of protection. Even the mother in Bangladesh who rows her children to safety after, yet another flood will find that, in legal terms, she is not considered a refugee.

This is the central injustice of our time: millions of people displaced by climate change exist in a legal vacuum. The international refugee system, designed in the aftermath of World War II, simply does not recognise them. The 1951 Refugee Convention protects those fleeing persecution, not those whose homes are disappearing under water or whose lands are turning into dust.[1]

This article argues that this gap is no longer tenable. It explores the limits of existing international law, highlights the human rights that climate displacement puts at risk, and draws lessons from case studies around the world. Finally, it makes the case for urgent reform, suggesting ways international law can evolve to provide recognition and protection for climate refugees.

Background and Conceptual Framework

The phrase “climate refugee” is widely used in academic and policy debates, but strictly speaking, it is a legal fiction. Under the 1951 Refugee Convention and its 1967 Protocol, the term “refugee” applies only to those with a “well-founded fear of persecution” for reasons such as race, religion, nationality, political opinion, or membership of a particular social group. Environmental factors do not qualify.

Some argue that “migrant” is a better term, but this suggests choice. For the vast majority of people leaving their homes because of floods, drought, or sea-level rise, the movement is anything but voluntary. Their decision is forced by survival. Thus, the term “climate refugee,” although not recognized in law, captures the reality more accurately than alternatives like “environmentally displaced persons.”

Climate displacement takes two forms. Sometimes it is sudden — a hurricane, flood, or wildfire wipes out entire communities overnight. Other times it is slow, creeping over years as rising seas salinize farmland or deserts encroach on grazing land. Both kinds of displacement uproot livelihoods, fracture communities, and drive people either across borders or into crowded urban areas where survival is precarious.

International law acknowledges these realities only indirectly. The UNFCCC and the Paris Agreement recognize migration and displacement as climate impacts, but they impose no legal obligations on states to accept or protect displaced persons. This mismatch between lived experience and legal categories lies at the heart of the problem.

Gaps in the Current International Legal Framework

The Refugee Convention remains the cornerstone of international protection, but its narrow definition excludes climate refugees entirely. Courts have consistently rejected claims based on environmental grounds. The most striking example is Ioane Teitiota v. New Zealand, where a citizen of Kiribati argued that sea-level rise threatened his family’s survival. New Zealand’s courts, and later the UN Human Rights Committee, rejected his claim on the basis that environmental degradation does not amount to persecution.[2]

While the Committee hinted that, in extreme cases, returning someone to life-threatening climate conditions could breach the right to life under the ICCPR, this was more a moral recognition than a binding legal standard. In practice, people like Teitiota remain unprotected.

Other instruments are equally weak. The UNFCCC and Paris Agreement deal with mitigation and adaptation but not migration. The Global Compact for Safe, Orderly and Regular Migration recognizes climate as a driver of movement but is non-binding. Even the Guiding Principles on Internal Displacement apply only within a state’s borders, offering nothing to those forced across frontiers.

What emerges is a patchwork of soft law, moral appeals, and incomplete protection. States remain free to turn climate refugees away, with no legal consequences.

Human Rights Dimensions

Although refugee law does not apply, human rights law provides a more promising — though still limited — avenue. Climate change directly undermines rights that are fundamental and universal.

• Right to Life: Protected under [3]Article 6 of the ICCPR, increasingly threatened where rising seas, floods, or droughts create life-threatening conditions.
• Right to Adequate Housing and Food: Central to the ICESCR, but eroded by desertification, crop failure, and destruction of homes.
• Right to Self-Determination: Especially urgent for island nations whose territories may disappear entirely. Losing land means losing sovereignty, culture, and legal identity.

The principle of non-refoulement offers a narrow but important safeguard. If returning someone to their country of origin exposes them to conditions that threaten their life or dignity, states may be obliged not to expel them. The Human Rights Committee in Teitiota’s case hinted at this, though without creating a general rule.

Human rights law also highlights the disproportionate impact of climate displacement. Women and children, already at risk of exploitation, suffer more acutely during displacement. Indigenous peoples, whose identities are tied to ancestral lands, risk not only homelessness but cultural extinction.

These human rights dimensions remind us that climate displacement is not just an environmental issue; it is a justice issue, striking hardest at those who contributed least to the crisis.

Case Studies

Pacific Islands: Kiribati and Tuvalu symbolize the plight of climate refugees. Rising seas are eroding land, contaminating water, and threatening entire ways of life. Kiribati has even purchased land in Fiji as a potential relocation site. But relocation raises difficult legal questions: Will these people retain their nationality? Will their state continue to exist without territory?

Africa – The Sahel and Lake Chad Basin: Desertification has pushed farmers and herders into conflict over shrinking resources. The Lake Chad Basin, once a lifeline for millions, has shrunk by 90% since the 1960s, driving migration, poverty, and instability. These pressures intersect with armed conflict, making displacement even more complex.

South Asia: Bangladesh is among the most climate-vulnerable countries in the world. Floods and cyclones displace hundreds of thousands every year. Many cross into India, where legal status is uncertain, and relations between the two states are strained.

Legal Development – [4]Teitiota v. New Zealand: Though Teitiota lost his case, the Human Rights Committee’s recognition that climate threats could, in principle, trigger non-refoulement obligations marked a small but significant step. It shows human rights law is beginning to fill the gap refugee law leaves behind.

These cases highlight both the urgency of protection and the inadequacy of current frameworks.

The Case for Legal Recognition

The central question is how best to close this protection gap. Three approaches dominate the debate:

1. Expanding the Refugee Convention: Amending the definition to include environmental displacement would provide direct recognition. But politically, states fear opening the floodgates to millions of claims.
2. Creating a New Treaty or Protocol: A tailored instrument on climate refugees could provide clarity, definitions, and enforceable rights. This would avoid diluting refugee law while addressing a distinct phenomenon.
3. Regional Approaches: The African Union’s Kampala Convention (2009) protects those displaced by natural disasters within Africa. Similar frameworks in the Pacific or South Asia could provide targeted solutions.

In the meantime, soft law measures — UNHCR guidance, the Global Compact for Migration — offer flexibility but lack teeth. Without binding commitments, states remain reluctant to act.

Recommendations and Reform Proposals

To move forward, the following steps are essential:

• Adopt a Binding Instrument: Whether a new treaty or protocol, climate refugees need explicit recognition. This should define eligibility, rights, and responsibilities of states.
• Interpret Human Rights Broadly: Courts and treaty bodies should develop jurisprudence that extends non-refoulement to climate cases. This would create immediate, case-by-case protection.
• Global Burden-Sharing: Wealthier states, especially those most responsible for emissions, must shoulder more responsibility for hosting climate refugees. This reflects the principle of “common but differentiated responsibilities.”
• Regional Leadership: Regional organizations should act where global consensus lags. The Kampala Convention provides a model for context-specific frameworks.
• Civil Society Advocacy: NGOs are crucial in shaping opinion, litigating cases, and supporting displaced people. Their role in pushing states toward recognition cannot be overstated.
• Link to Climate Finance: Funds for “loss and damage” under the Paris Agreement should support both adaptation and dignified migration pathways.

Conclusion

The farmer who leaves his field in the Sahel, the family who moves from Kiribati to Fiji, the mother rowing her children through Bangladesh’s rising waters — these are not abstract figures. They are people whose lives expos cracks in international law.

The Refugee Convention was crafted in a different era, for a different kind of crisis. It cannot, by itself, carry the weight of twenty-first-century climate displacement. The world now faces a choice: either stretch old legal frameworks beyond recognition or create new ones that speak directly to today’s realities.

Recognizing climate refugees is not simply a matter of legal reform; it is a matter of justice. Those most affected by climate change are often those who contribute least to it. Protecting them is not charity — it is responsibility.

International law must evolve, not only to uphold its credibility but to protect human dignity in an age of rising seas and shifting sands. The time for hesitation has passed. Climate refugees are here, and their protection cannot wait.

Bibliography(OSCOLA Style)

Treaties and Conventions

• Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137
• Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267
• International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171
• International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3

UN Documents and Reports

• UNHCR, Legal Considerations Regarding Claims for International Protection Made in the Context of the Adverse Effects of Climate Change and Disasters (2020)
• UN Human Rights Committee, General Comment No 36: Right to Life (Article 6, ICCPR), UN Doc CCPR/C/GC/36 (2018)
• Intergovernmental Panel on Climate Change (IPCC), Climate Change 2022: Impacts, Adaptation, and Vulnerability (Cambridge University Press 2022)
• United Nations Human Rights Council, Human Rights and Climate Change, UN Doc A/HRC/RES/35/20 (22 June 2017)

Books

• Jane McAdam, Climate Change, Forced Migration, and International Law (Oxford University Press 2012)
• Benoît Mayer, The Concept of Climate Migration: Advocacy and Its Prospects (Edward Elgar 2016)
• Sumudu Atapattu, Human Rights Approaches to Climate Change: Challenges and Opportunities (Routledge 2016)

Journal Articles

• Jane McAdam, ‘Swimming Against the Tide: Why a Climate Displacement Treaty is Not the Answer’ (2011) 23 International Journal of Refugee Law 2
• Benoît Mayer, ‘Refugee Status and Subsidiary Protection in the Climate Change Context’ (2011) 22 Global Environmental Change 263
• Walter Kälin and Nina Schrepfer, ‘Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and Possible Approaches’ (2012) 3 UNHCR Legal and Protection Policy Research Series
• Andrew Baldwin, ‘Rethinking Refugee Law in a Warming World’ (2017) 4 Journal of Human Rights and the Environment 61

Case Law

• Teitiota v New Zealand [2015] NZSC 107
• Ioane Teitiota v New Zealand (Views adopted 7 January 2020) UN Human Rights Committee, UN Doc CCPR/C/127/D/2728/2016

[1] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137.

[2] UNHCR, Legal Considerations Regarding Claims for International Protection Made in the Context of the Adverse Effects of Climate Change and Disasters (2020).

[3] UN Human Rights Committee, General Comment No 36: Right to Life (Article 6, ICCPR), UN Doc CCPR/C/GC/36 (2018).

[4] Teitiota v New Zealand [2015] NZSC 107.