Authored By: Fatima Hammad Hashmi
Introduction
Refugee law defines a refugee as someone with a well-founded fear of being persecuted for reasons of their race, religion, nationality, political opinion, or membership of a particular social group .[1] The major challenge in the definition stems from the interpretation of the term ‘persecution’. Persecution, in the contemporary legal instruments, does not cover instances of persons fleeing inundation, drought, and desertification. This gap does not seem accidental; it is a structural loophole that serves the geopolitical interests of the states that are largest historical contributors to climate change.
The article would argue on two tangents. Firstly, the existing international legal framework is structurally incapable of addressing climate displacements, and no complementary protection fills the gap. Secondly, the article will examine comparative state practice, followed by a proposed way forward.
Definitional Challenge
The absence of reference to environmental factors when defining persecution was a drafting flaw since the convention was formulated as an aftermath of World War II to address political and religious persecution in Europe, hence the challenge before us. [2] To additionally note here is the gap that existed even after the 1967 protocol removed teh temporal limit and made it universal, the gap existed and remains today.
One of the major reasons why the law has a limited application is the fact that most people seeking refuge due to climate-induced situations did not cross international borders, which makes the refugee law in itself inapplicable.[3] The drafters of the Convention were concerned with cross‑border movement because they were designing a burden‑sharing mechanism among states. Internal displacement was left to domestic law, which, in most climate‑vulnerable states, does not exist or is not enforced. The consequence is that the majority of climate‑displaced persons fall into a legal void where no international instrument applies.
However, in response to the limitations of the convention, states and international bodies have developed complementary protection mechanisms. With around 32 million people displaced due to climate-related events, the world seems to be becoming more critically aware of ‘climate refugees’[4] or sometimes also called by experts ‘hazard scapes’ urgency of this gap cannot be overstated.[5]
In response to the Convention’s limitations, the European Union Qualification Directive provides subsidiary protection for persons facing ‘serious harm’, the US offers ‘temporary protected status, and the UK provides discretionary humanitarian protection. These mechanisms must be understood as not solutions but as alibis. They serve a threefold function.
Firstly, they legitimize inaction on convention reform. States can point to subsidiary protection and argue that they are doing something, but the definition of persecution still remains unreformed.
Secondly, they create a two-tier system of protection. Subsidiary protection provides fewer rights, like no family reunification, no permanent residence, and often no work authorization as well. McAdam also quotes it as ‘a second-class status that confirms, rather than closes, the gap in the convention’.[6]
Finally, they are discretionary and temporary. A person on subsidiary protection can have teh status revoked after teh conditions ‘improve’. The threshold of improvement is subjective and is not enshrined legally. This also leaves excessive room for interpretation as to what is effectively an ‘improved’ condition. Improved conditions might still be dangerous or not up to adequate living standards, and the absence of enforcement mechanisms means the problem just gets worse, especially after the person’s protected status is revoked. This article argues that complementary protection is worse than nothing. It creates the illusion of a remedy while entrenching the structural exclusion. A person who knows they have no rights may demand change. A person who is given a temporary, discretionary status may be pacified. The alibi is more effective than silence.
Comparative Analysis
Proceeding forward to the second tangent of the article, the script will analyse how courts have reproduced the gap despite the states trying to fill in the crevices. The UNHRC’s decision in Teitota v New Zealand shifted the framing for th the first time. The committee considered whether ‘right to life.’[7] would be violated if they were returned. It was held that the risk was not sufficiently imminent but stated that ‘without robust national and international efforts, the effects of climate change may expose individuals to a violation of rights under article 6.[8] The committee’s framework is non-refoulement, which prevents return to life-threatening places and positions. However, teh deep problem exists. The committee identifies what a systemic threat is; it is fundamentally compatible with slow-onset events like sea level rise or desertification. The committee does identify and understand teh issue, but it cannot solve it since the forte of the human rights framework was not designed to facilitate environmental displacements.
One of the major counterarguments is that a single interpretive expansion is sufficient. McAdam and others argue that the courts could recognise climate-displaced persons as a ‘particular Social group’.[9] The UNHCR’s 2001 Guidelines state that a particular social group is defined by an “immutable characteristic” or a “shared trait that is so fundamental to identity that a person should not be required to change it.”[10] No court has accepted this approach so far. In Teitiota, the court explicitly rejected the claim that people living in low-lying areas constituted a particular social group. [11]The reason is that the group is defined solely by environmental vulnerability, not by a characteristic that is immutable in the relevant sense. More fundamentally, even if this argument succeeded, the “persecution” element remains. Who is the persecutor? What is the intentional act? Interpretive expansion cannot solve the structural problem because the structural problem is not interpretive. It is categorical.
Additionally, some also argue that a progressive way forward is beyond a legal solution. Climate displacement should be addressed through climate finance and loss and damage mechanisms under teh UNFCCC [12] However, teh effectiveness of this proposal is also limited. A person who loses their home to sea‑level rise cannot bring a claim under the Paris Agreement. Loss and damage funding is discretionary, slow, and grossly underfunded. At COP28 in 2023, states committed to a loss and damage fund, but the initial pledges were less than $700 million, a fraction of what is needed[13]. Abandoning refugee law in favour of climate finance is not a solution. It is an abandonment of protection.
The issues within the proposals for Reform
Finally, it is evident that from a comparison of state practices, no jurisdiction has granted refugee status on climate grounds. The most protection available is subsidiary. Teh universalirty is of failure is not coincidental; it is rather a very predictable outcome of a system in which the states that would bear the cost of protection also control teh institutions that define the protection. US, in Cruz Galicia v. Garland (2024), the Ninth Circuit rejected a claim that climate-displaced persons constitute a ‘particular social group’[14]. The US, the largest historical emitter,r has closed the door more firmly than any other jurisdiction.
Conclusion
The article has argued on two tangents. First, the existing international legal framework is structurally incapable of addressing climate displacement. The three assumptions underlying the Convention’s definition of persecution, a human persecutor, targeted harm, and a state of origin that is either complicit or able to protect, are fundamentally incompatible with the reality of climate displacement. Complementary protection mechanisms do not fill this gap. They legitimise it by offering second‑class status while preserving the appearance of protection. Secondly, through examination of comparative state practice,s it can be seen that the gap is not accidental. It is a structural loophole that serves the geopolitical interests of the states that are the largest historical contributors to climate change.
Reference(S):
[1] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention) art .1
[2] Jane McAdam, Climate Change, Forced Migration, and International Law ( Oxford University Press 2012 ) 45
[3] Jane McAdam, Climate impacts are forcing people from their homes. when , how and why do they have valid refugee claims? Published Februray 2025 ( University of Sydney press)
[4] Blog Post Abigail Ogden, student at American University, Refugee Law initiative, School of Adnvanced study University of London( adopted in June 28 2025 )
[5] Jane McAdam, Climate impacts are forcing people from their homes. when , how and why do they have valid refugee claims? Published Februray 2025 ( University of Sydney press)
[6] McAdam ( n13) 112
[7] Article 6 ICCPR
[8] Teitiota v Chief Executive of the Ministry of Business, Innovation, and Employment [2015] NZSC 107.Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZSC 107.
[9] McAdam(n 3 ) 89-95
[10] UNHCR, ‘Guidelines on International Protection: Membership of a Particular Social Group’ (UNHCR, 2001) para 11.coincidental;
[11] Teitiota (n 9) [62].
[12] Walter Kälin, ‘The Climate Change-Displacement Nexus’ (2018) 36(2) Refuge 19, 24.practices
[13] COP28, ‘Decision on the Operationalisation of the Loss and Damage Fund’ (UNFCCC, December 2023).
[14] Cruz Galicia v Garland 123 F.4th 1234 (9th Cir 2024).
