By Andrea Maria Pelliconi, PhD candidate in Law & GTA at City University of London

Deadly heat waves, frequent and intense droughts, storms, melting glaciers, rising sea levels and sinking lands, habitat destruction, loss of livelihoods, and resource scarcity: this is not the scene of a dystopian movie, but the concrete reality of the threats that climate change poses to – human and nonhuman – survival. These consequences of the anthropo-generated climate emergency have profound impacts, endangering the very existence of entire ecosystems and their living beings. Changing climate means changing legal challenges that require solutions. One of the most politically charged issues intensified by climate change is migration,[i] with individuals and entire communities at risk of internal or international displacement due to extreme weather events or slow-onset climate effects. The evident inadequacy of existing international legal frameworks in providing a response has recently been highlighted by a report of the first-ever United Nations (UN) Special Rapporteur on Climate Change Ian Fry, presented to the Human Rights Council’s 53rd session commencing this week.[ii] This post explores this climate of legal uncertainty surrounding climate-related migrants,[iii] and some potential initiatives that have been put forth.

The current international refugee law regime is not a safe harbour for those navigating rising sea-levels and other consequences of climate change. The 1951 Refugee Convention only covers those who are unable to return to their country due to a well-founded fear of persecution based on protected grounds such as race, religion, nationality, social group, or political opinion.[iv] Since climate change does not involve intentional, targeted persecution and there is generally no direct connection between harm suffered and belonging to a protected category, climate-related migrants usually do not fit within the definition of ‘refugees’, unless they are displaced as a result of persecution arising from armed conflicts incidentally triggered by climate change (like the increasingly frequent wars on water). Outside these cases, the content of the Refugee Convention is hardly reconciled with the protection needs of climate-related migrants. This is why it would be technically inaccurate to refer to ‘climate refugees’ – a term that is not endorsed by the UN Refugee Agency (UNHCR),[v] and that ingenerates mixed feelings across scholars and activists.[vi]

Yet, among the solutions to address this protection gap is that of welcoming ‘climate refugees’ under the umbrella of the Refugee Convention, for example by amending its text or adopting a new ad hoc Protocol.[vii] The latter is the preferred long-term solution of the UN Special Rapporteur, who calls for the start of negotiations on an ‘optional protocol to the Convention relating to the Status of Refugees to define and give legal protection to persons displaced across international borders due to climate change’.[viii]

This solution has, however, also some shortcomings. Reforming international refugee law to explicitly cover climate-related migrants would require a significant shift in states’ current approach to their obligations towards global migration, and could face political resistance and backlash thunderstorms. Ultimately, the ratification of the Protocol would be down to states’ goodwill to adhere to it. The potential low ratification rate would not only be a raindrop in the ocean, but also a political downfall for what could, instead, be a momentum for increased legal protections. An intervention on the refugee legal regime would also only create protections for internationally displaced people, leaving out the majority of those affected. In addition, migratory dynamics mean that the vast majority of asylum seekers find themselves flooding neighbour countries; since climate change disproportionately affects vulnerable and marginalized communities in developing regions, this poses questions around justice, obligation-sharing, and re-distributive responsibilities. The highest pressure would be on neighbouring countries, perpetuating a dynamic where those least responsible for climate change often suffer the most from its immediate consequences.  

An alternative approach is creating a specific international treaty for climate-related mobility, which would be able to tackle both internal and international displacement. It has been suggested that such treaty would be able to incorporate the principle of equity and the United Nations Framework Convention on Climate Change (UNFCCC)’s principle of Common but Differentiated Responsibilities and Respective Capabilities.[ix] An obvious downside remains that such treaty would also need to be ratified by states unilaterally accepting to submit themselves to burdensome obligations – a club with onerous fees where the exiguous number of members does not mean exclusivity, but lack of foreseeable advantages.[x]

A potential life jacket to counter the political impracticability of the above solutions could be promoting an interpretation of the refugee law’s principle of non-refoulement (Article 33 of the Refugee Convention), which prevents the forced return of individuals to a place where they would face persecution or serious harm, so as to cover ‘climate refugees’.[xi] In other words, instead of expanding the notion of ‘refugee’, we would have an expansive understanding of what constitute ‘unsafe place’, to which refoulement is prohibited.

In particular, a human rights-based interpretation of non-refoulement would encompass the prohibition to return (any) aliens to countries where they may face violations of human rights and fundamental freedoms. In the context of climate-related migrants, legal scholars have proposed the introduction of a ‘returnability test’ that would assess the safety of return in the light of the cumulative impact of rights deprivations,[xii] which would help show the achievement of the required gravity threshold. This would be in line with the 2018 UN Principles and Practical Guidance on the Protection of the Human Rights of Migrants in Vulnerable Situations, which encouraged states to extend protection under international human rights law to individuals who do not qualify for refugee status but would face violations of human rights if returned. Similarly, the principle of non-refoulement applies to situations where there is a risk of widespread rights violations amounting to crimes against humanity. If current efforts to include ecocide in the Rome Statute as a fifth international crime are successful,[xiii] this will provide a solid argument that migrants fleeing such crime should be entitled to international protection. Non-refoulement could thus be considered as a human rights principle applicable beyond asylum law and to vulnerable categories other than ‘refugees’.

One way to reinterpret the principle’s scope is to do so through judicial application. Although courts have not yet recognized climate change impacts as meeting the threshold for non-refoulement, its adverse effects on human rights suggest that this may change in the future. A significant development in the application of non-refoulement to climate-related migrants, for example, was the case of Kiribati national Ioane Teitiota before the Human Rights Committee in 2019.[xiv] The Committee eventually confirmed the domestic court’s decision denying the applicant refugee status, because risks were not deemed to be imminent and the states were taking appropriate measures to tackle them; however, the Committee also acknowledged the potential application of non-refoulement beyond refugee status and based on climate change effects.[xv] In particular, the Committee stated that the effects of climate change may trigger non-refoulement obligations in future cases, to avoid violation of right to life and prohibition of torture, or other cruel, inhuman or degrading treatment or punishment under Articles 6 and 7 of the International Covenant on Civil and Political Rights (ICCPR).[xvi] The Committee thus endorsed the possibility of human rights grounds to prevent refoulement beyond the scope of the Refugee Convention. In his dissenting opinion, Ambassador Laki argued that ‘the threshold should not be too high’ or it would become ‘unreasonable’.[xvii]

Overall, non-refoulement has been extensively applied through international human rights treaties and standards. The principle has been expansively interpreted to prevent the expulsion or repatriation of individuals facing threats to life or dignity in their country of origin, irrespective of their belonging to a protected group. This approach is attracting growing consensus and has the advantage of overcoming some of the political problems deriving from the two previous proposals. However, it is a remedial and non-systemic solution, which can only be applied to individual cases of migrants that manage to reach safe shores, after human rights violations have already taken place. It would likely be applied inconsistently by domestic courts across the world, and fails to relieve the excessive burden on neighbouring countries or protect internally displaced migrants.

Although, as we have seen, no easy solution is under the sun, it is clear that collective legal initiatives are urgently needed to address the challenges faced by climate-related migrants. As the Special Rapporteur posited, the lack of a comprehensive framework for the protection of persons displaced across international borders due to climate change is a ‘major omission’, upon which the international community has a ‘duty of care’.[xviii] Whatever the preferred solution, this gap should be addressed collectively, systematically, and with urgency. As Professor Surya Subedi suggests, the UN General Assembly and the Sixth Committee could pioneer an ad hoc Resolution identifying state obligations in the context of climate change, including responsibilities towards climate-related migrants, in the light of already existing international environmental principles, human rights standards, and the focus on human security at the core of the UN system.[xix] Even more compellingly, the International Law Commission could include them in its work on state responsibility.[xx] These actions would accelerate the achievement of durable and effective solutions.

While recent trends indicate the international protection regime is slowly evolving, the proposed initiatives to date remain limited, mainly theoretical, and inevitably remedial. They seek to respond to the effects of an ongoing crisis, rather than preventing them from materialising – which should, of course, be the priority of policymakers. In addition, these solutions underscore a purely anthropocentric concern which disregards the fate of other living beings that are unable to avail themselves of the afforded protections. A real solution to the climate catastrophe necessitates a more holistic approach. After all, there are no human rights on a dead planet.

Photo: Kiribati affected by climate change (credits: United Nations)

[i] The 2018 Global Compact on Migration clearly recognised ‘the adverse impacts of climate change and environmental degradation’ as one of the factors causing large-scale movements of people; see Global Compact for Safe, Orderly and Regular Migration, UNGA Resolution of 19 December 2018 [A/RES/73/1951].

[ii] UNGA, Report of the Special Rapporteur on the promotion and protection of human rights in the context of climate change, Ian Fry ‘Providing legal options to protect the human rights of persons displaced across international borders due to climate change’, 18 April 2023 [A/HRC/53/34].

[iii] In the context of this blog post, this term indicates people who are displaced, either internally or internationally, or are forced or induced to migrate due to climate change and climate change-related events and disasters.

[iv] Convention Relating to the Status of Refugees, 22 April 1954, UNTS 189, p. 137, Geneva, 28 July 1951 (Refugee Convention (1951)), Article 1.

[v] UNHCR refers instead to ‘persons displaced in the context of disasters and climate change’; see ‘Climate change and disaster displacement’, available at < https://www.unhcr.org/what-we-do/how-we-work/environment-disasters-and-climate-change/climate-change-and-disaster >.

[vi] For an appraisal, see Frank Biermann & Ingrid Boas, ‘Preparing for a Warmer World: Towards a Global Governance System to Protect Climate Refugees’, [2010] 10(1) Global Environmental Politics, pp. 60-68; for criticism, see e.g. Abby Kleiman, ‘Climate displacement and human rights: rectifying the current legal protection lacuna through international and regional solutions’ [2023] 27(3) International Journal of Human Rights, p. 571.

[vii] Colin Harvey, ‘Time for Reform? Refugees, Asylum-seekers, and Protection Under International Human Rights Law’, [2015] 34(1) Refugee Survey Quarterly, pp. 43–60, pt. 4.

[viii] Supra II, para. 71, recommendation (a).

[ix] Abby Kleiman, ‘Climate displacement and human rights: rectifying the current legal protection lacuna through international and regional solutions’ [2023] 27(3) International Journal of Human Rights, p. 567.

[x] For further criticism, see Jane McAdam, ‘Swimming Against the Tide: Why a Climate Change Displacement Treaty Is Not the Answer’, (2011) 23(1) International Journal of Refugee Law; Dina Ionesco, ‘Let’s Talk About Climate Migrants, Not Climate Refugees’, UN News, 6 June 2019, available at < https://www.un.org/sustainabledevelopment/blog/2019/06/lets-talk-about-climate-migrants-not-climate-refugees/ >.

[xi] Cf. e.g. Goodwin-Gill on the need to relate notion of persecution to developments in human rights laws (Guy S. Goodwin-Gill, ‘The International Law of Refugee Protection’, Elena Fiddian-Qasmiyeh, Gil Loescher, Katy Long & Nando Sigona (eds), The Oxford Handbook of Refugee and Forced Migration Studies (OUP 2014) p. 38).

[xii] Walter Kälin, ‘Conceptualising Climate-Induced Displacement’ in Jane McAdam (ed), Climate Change and Displacement: Multidisciplinary Perspectives (Hart Publishing, 2010), p. 98.

[xiii] Maria Mazurek, ‘From Agent Orange to the Amazon: Criminalizing and Defining Ecocide under the Rome Statute’, International Law Blog, 8 May 2023, available at < https://internationallaw.blog/2023/05/08/from-agent-orange-to-the-amazon-criminalizing-and-defining-ecocide-under-the-rome-statute/ >; Clare Kennedy, ‘Why is an international crime of ecocide necessary?’, International Law Blog, 1 June 2023, available at < https://internationallaw.blog/2023/06/01/why-is-an-international-crime-of-ecocide-necessary/ >.

[xiv] HRC, Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication no. 2728/2016, 24 October 2019 [CCPR/C/127/D/2728/2016] (HRC, Ioane Teitiota (2019)). See also ‘Historic UN Human Rights case opens door to climate change asylum claims’, UN News, 21 January 2020, available at < https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25482 >; Jane McAdam, ‘Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-refoulement’, [2020] 14 (4) American Journal of International Law, pp. 708 – 725; Melanie Desert, ‘Climate Change Refugees: The Landmark Case of Teitiota v New Zealand’, [2020] Environmental Journal; Natalia Ochoa Ruiz, ‘¿Pueden los Países Deportar a los Refugiados Climáticos?’, [2020] Ethic (The Conversation), available at < https://ethic.es/2020/03/pueden-los-paises-deportar-a-los-refugiados-climaticos/ >; Spyridoula Katsoni & Jan-Phillip Graf, ‘The Future of “Climate Refugees” in International Law’, Völkerrechtsblog, 5 June 2021, available at < https://voelkerrechtsblog.org/the-future-of-climate-refugees-in-international-law/ >; Jefferi Hamzah Sendut, ‘Climate Change as a Trigger of Non-Refoulement Obligations Under International Human Rights Law’, Ejil:Talk!, 6 February 2020, available at < https://www.ejiltalk.org/climate-change-as-a-trigger-of-non-refoulement-obligations-under-international-human-rights-law/ >; Emanuele Sommario, ‘When climate change and human rights meet: A brief comment on the UN Human Rights Committee’s Teitiota decision’, Questions of International Law, 31 January 2021, available at < http://www.qil-qdi.org/when-climate-change-and-human-rights-meet-a-brief-comment-to-the-un-human-rights-committees-teitiota-decision/ >.

[xv] Idem HRC 2019, point 9.3, p. 9.

[xvi] Idem point 9.11, p. 11.

[xvii] Idem Annex I, p. 13.

[xviii] Supra II, paras. 64-65.

[xix] Keynote speech of Professor Surya P. Subedi at the Annual International Human Rights Conference on ‘Climate Change and Human Rights’ of Gonzaga University, School of Law, Florence, 26 May 2023.

[xx] Idem.