3.1 The State of International Refugee Law
Climate refugees exist in a legal grey zone. Although they affect many people, they lack the formal protections that the 1951 Refugee Convention affords to refugees fleeing persecution. This chapter examines current legal frameworks and their gaps, emerging protections, and strategies for advocacy and reform.
- Adopted: 28 July 1951 (Geneva)
- Entry into force: 22 April 1954
- States parties: 149 states party to the Convention and/or its 1967 Protocol
Core definition: a refugee is a person who, "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".
The Five Grounds of the 1951 Refugee Convention
┌─────────────────────────────────────┐
│ Conditions for refugee status │
│ (one of the five grounds needed) │
└──────────────────┬──────────────────┘
│
Race · Religion · Nationality · Social group · Political opinion
❌ Climate change is not among these five grounds
┌─────────────────────────────────────┐
│ Climate refugees (protection gap) │
│ • Sea level rise │
│ • Drought and desertification │
│ • Extreme weather events │
│ • Environmental degradation │
└─────────────────────────────────────┘
3.1.1 Protections the Convention Provides
- Non-refoulement: the right not to be returned to places where life or freedom is threatened
- Right to work: access to employment in the host country
- Access to courts: legal representation and judicial protection
- Education: right to primary education, access to secondary and higher education
- Freedom of movement: movement within the host country
- Identity documents: travel documents and identification
- Social welfare: access to public assistance programmes
3.1.2 Why Climate Refugees Do Not Qualify
- Environmental factors are not persecution: climate change is not recognized as persecution on one of the five protected grounds
- No persecutor: unlike political persecution, there is no clear agent of persecution
- Internal displacement: most climate displacement does not cross borders
- Mixed motivations: environmental and economic factors intertwine, complicating classification
- Temporal issues: slow-onset displacement does not fit the sudden-flight refugee model
3.2 The Legal Protection Gap
With no clear definition or protection system in international law, climate refugees are in a state of "legal limbo".
- No definition: "climate refugee" is not a formal term of international law
- No protection mechanism: not included in the 1951 Convention
- Risk of return: non-refoulement under human rights law is recognized only in very limited cases
- Unclear legal status: interpretation and application differ by country
- Insufficient rights guarantees: rights to education, health care and work are uncertain
- No resettlement obligation: no clear system of international responsibility-sharing
Legal Protection Spectrum (conceptual)
Stronger protection Weaker protection
│←───────────────────────────────────────────────→│
┌──────────┬──────────┬──────────┬──────────┬──────────┐
│ Refugee │Subsidiary│Temporary │ Climate │ Economic │
│ (1951) │/humanit. │protection│ refugee │ migrant │
│ │protection│ │ │ │
│• Perm. │• Limited │• Temp. │• Unclear │• Volunt. │
│ resid. │ resid. │ stay │• Varies │ move │
│• Work │• Work │• Return │ by state│• Visa │
│• Non- │• Condit. │ risk │• Limited │ needed │
│ refoul. │ protect.│ │ rights │ │
└──────────┴──────────┴──────────┴──────────┴──────────┘
Position of climate refugees: the zone of legal gap
3.3 Protection through Human Rights Law
Even where climate refugees are not protected by the Refugee Convention, protection through international human rights law remains possible.
3.3.1 Relevant International Human Rights Instruments
| Instrument | Year Adopted | Relevant Rights | Application to Climate Refugees | Limitations |
|---|---|---|---|---|
| Universal Declaration of Human Rights (UDHR) | 1948 | Right to life, adequate standard of living, freedom of movement | Basic framework applying to all people | Not legally binding |
| International Covenant on Civil and Political Rights (ICCPR) | 1966 | Right to life (Art. 6), prohibition of torture and inhuman treatment (Art. 7) | Basis for prohibiting return to life-threatening conditions | Requires showing an imminent, personal risk |
| International Covenant on Economic, Social and Cultural Rights (ICESCR) | 1966 | Adequate standard of living, food, housing, health | Basis for claims to basic services | Progressive realization |
| Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) | 1979 | Protection from discrimination, equal rights | Addresses gender-specific vulnerability | Not displacement-specific |
| Convention on the Rights of the Child (CRC) | 1989 | Best interests of the child, protection from harm | Strong protection for displaced children | Limited to minors |
| Convention on the Rights of Persons with Disabilities (CRPD) | 2006 | Protection in situations of risk and humanitarian emergencies (Art. 11) | Protection of vulnerable groups | Not displacement-specific |
3.3.2 Legal Basis for Rights-Based Protection
1. Right to life
ICCPR Article 6: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."
Application: a duty of protection may arise where climate change threatens life
2. Prohibition of torture and inhuman treatment
ICCPR Article 7: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."
Application: whether return to extreme climate conditions could amount to inhuman treatment is debated
3. Right to an adequate standard of living
ICESCR Article 11: the right of everyone to an adequate standard of living for themselves and their family, including adequate food, clothing and housing
Application: a basis for protection needs where climate change makes a basic life impossible
3.4 Landmark Legal Cases
3.4.1 Teitiota v. New Zealand (2020)
Background: Ioane Teitiota and his family moved from Kiribati to New Zealand in 2007. After their visas expired, they applied for refugee status on the ground that sea level rise was making Kiribati uninhabitable.
Main claims:
- Much of Kiribati's land at risk of inundation from sea level rise
- Shortage of drinking water due to contamination of fresh water
- Difficulty growing crops
- Increasing disputes caused by land shortage
- Threats to life and safety
New Zealand courts: refugee status refused; climate change is not a ground of persecution under the 1951 Convention.
UN Human Rights Committee decision (published January 2020): the Committee did not find the removal unlawful, because the risk at the time was not imminent enough to violate the Covenant, but it set out the following principles:
- Climate change and environmental degradation are among the most serious threats to the enjoyment of the right to life
- Where the effects of climate change may violate ICCPR Article 6 (right to life) or Article 7, states may bear non-refoulement obligations
- It noted that, without international assistance, conditions in the country concerned could reach that level within a period of years
Significance: an international human rights body explicitly recognized that climate change can ground non-refoulement under international human rights law; the decision has become an important reference point for later climate-related protection claims.
3.4.2 Other Important Cases
| Case | Body | Year | Outcome | Significance |
|---|---|---|---|---|
| AF (Kiribati) [2013] NZIPT 800413 | New Zealand Immigration and Protection Tribunal | 2013 | Refugee status refused (Teitiota's own case) | Did not rule out environmental factors as a pathway to refugee status |
| AC (Tuvalu) [2014] NZIPT 800517-520 | New Zealand Immigration and Protection Tribunal | 2014 | Refugee and protected-person status refused | Examined protection standards for climate-impact claims |
| AD (Tuvalu) [2014] NZIPT 501370-371 | New Zealand Immigration and Protection Tribunal | 2014 | Residence granted on humanitarian grounds | Climate factors considered alongside family ties |
| Sacchi et al. v. Argentina et al. | UN Committee on the Rights of the Child | 2021 | Inadmissible for non-exhaustion of domestic remedies | Jurisdiction over transboundary climate harm recognized |
| Daniel Billy et al. v. Australia ("Torres Strait Islanders") | UN Human Rights Committee | September 2022 | Violations of ICCPR Article 17 (private and family life) and Article 27 (minority culture) found | Confirms state obligations to protect from climate impacts |
| M.K. Ranjitsinh et al. v. Union of India | Supreme Court of India | 2024 | Recognized a right to be free from the adverse effects of climate change under Articles 14 and 21 of the Constitution | National precedent for climate protection duties |
| Advisory opinion on the obligations of states in respect of climate change | International Court of Justice (ICJ) | 23 July 2025 | Delivered at the request of the UN General Assembly (March 2023), an initiative led by Vanuatu | Confirms that states have legal obligations under international law to address climate change |
3.5 Regional Legal Frameworks
Some regions have protection systems broader than the Refugee Convention.
3.5.1 Africa: The OAU Refugee Convention (1969)
- Full title: Convention Governing the Specific Aspects of Refugee Problems in Africa
- Adopted: 10 September 1969 / Entry into force: 20 June 1974
- Feature: a broader refugee definition than the 1951 Convention
Refugee definition (Article 1(2)): every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality
Application to climate refugees: some interpret "events seriously disturbing public order" as capable of including large-scale climate disasters, but slow-onset climate change remains ambiguous.
3.5.2 Africa: The Kampala Convention (2009)
The African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention, adopted 2009, in force 2012) is the world's first binding regional treaty on internal displacement and explicitly addresses displacement caused by natural and human-made disasters, including climate change. It is limited to internal displacement, however, and implementation varies widely between countries.
3.5.3 Latin America: The Cartagena Declaration (1984)
- Adopted: 22 November 1984 (Cartagena, Colombia)
- Nature: non-binding declaration (reflected in the national law of several states)
Expanded refugee definition: persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order
Application to climate refugees: some interpret "other circumstances which have seriously disturbed public order" as capable of including climate disasters, and some countries (such as Argentina and Brazil) offer humanitarian residence pathways for victims of environmental disasters.
3.5.4 Europe: The Temporary Protection Directive
- Adopted: 20 July 2001
- Purpose: emergency response to mass influx situations
- Who is covered: people who have fled armed conflict or endemic violence, victims of systematic or generalized human rights violations and others. Because the definition is open-ended ("in particular"), its possible application to people displaced by environmental disasters has been discussed
- Protection: one year of residence (extendable up to a maximum of three years), work authorization, access to education and health care
- Limitations: activation requires a qualified-majority decision of the EU Council; it was activated for the first time for the 2022 Ukraine crisis
3.5.5 The Pacific: Regional Responses
In 2023 the Pacific Islands Forum (PIF) adopted the Declaration on the Continuity of Statehood and the Protection of Persons in the Face of Climate Change-Related Sea-Level Rise, stating that statehood and maritime boundaries continue even if territory changes because of sea level rise. The Pacific Regional Framework on Climate Mobility was endorsed in the same year (see Chapter 7).
3.6 National Approaches
3.6.1 Key Country Examples
| Country | Policy/Law | Content | Status |
|---|---|---|---|
| New Zealand | Pacific Access Category and other regular migration schemes | Regular migration pathways for Pacific islanders (a climate visa was proposed in 2017 and shelved in 2018) | Operating |
| Australia | Falepili Union treaty with Tuvalu | Migration pathway for up to 280 Tuvaluans per year and a commitment to respect Tuvalu's continued statehood | In force since 2024 |
| Sweden | Environmental disaster protection provision (former) | Residence where return was impossible because of an environmental disaster | Suspended 2016, repealed 2021 |
| Finland | Humanitarian protection (former) | Protection for victims of environmental disasters | Repealed 2016 |
| Argentina | Special humanitarian visa programme | Temporary humanitarian residence for people from Mexico, Central America and the Caribbean displaced by socio-natural disasters (2022) | Case-by-case assessment; limited uptake |
| Brazil | Migration Law (2017) | Humanitarian visa on grounds including environmental disaster | Operating |
| Bangladesh | Disaster Management Act; National Strategy on the Management of Disaster and Climate Induced Internal Displacement | Framework for prevention, protection and resettlement of internally climate-displaced people | Many implementation challenges |
3.6.2 New Zealand's Arrangements
1. Pacific Access Category
- Annual quotas (by ballot) for citizens of Tuvalu, Kiribati, Fiji and Tonga
- 75 each for Tuvalu and Kiribati, 250 each for Fiji and Tonga
- Pathway to permanent residence
2. Residence on humanitarian grounds
- Family ties and humanitarian factors are assessed together, and climate impacts can be a relevant factor (AD (Tuvalu))
3. The proposed climate refugee visa
- Proposed in 2017 by the Green Party climate change minister
- An experimental humanitarian visa of up to 100 places per year for Pacific islanders
- Shelved in 2018 after consultation with Pacific countries, and never introduced
3.7 Statelessness and Climate Change
The most extreme legal challenge is the loss of territory as a whole. If the territory of low-lying island states becomes uninhabitable or disappears, concern has been raised that their citizens could become stateless.
Statelessness Risk Scenario
States where loss of territory is a concern (approximate populations):
├─ Maldives: about 520,000
├─ Kiribati: about 120,000
├─ Marshall Islands: about 42,000
├─ Tuvalu: about 11,000
└─ Total: about 700,000
Legal questions:
├─ Does statehood persist without territory?
├─ Can a government in exile maintain sovereignty?
├─ What happens to maritime boundaries and the EEZ?
├─ Who holds the UN seat?
├─ How are citizenship rights maintained?
└─ What are other states' obligations?
Proposed solutions and recent developments:
├─ Recognition of ex-situ statehood
├─ Preservation of citizenship by descent
├─ Collective relocation with cultural autonomy
├─ International trusteeship arrangements
└─ Codifying continuity of statehood (PIF 2023 Declaration,
Australia-Tuvalu Falepili Union treaty)
3.8 Rights During Displacement
Regardless of legal status, climate-displaced persons should be guaranteed the following basic rights. The protection levels below are this book's qualitative assessment.
| Right Category | Specific Rights | Current Protection Level | Implementation Gap |
|---|---|---|---|
| Documentation | Identity documents, birth certificates, property records | Medium | Documents are often lost during displacement |
| Family Unity | Right to remain with family, reunification | Low | Families often separated; limited reunification pathways |
| Protection from Return | No return to dangerous conditions | Emerging | Not consistently recognized |
| Access to Services | Health care, education, social services | Variable | Often depends on legal status |
| Right to Work | Work authorization, fair wages | Low | Many lack work permits |
| Property Rights | Access to lost property, compensation | Very low | No established mechanism |
| Political Participation | Voting rights, representation | Very low | Disenfranchisement is common |
| Cultural Rights | Maintaining language, traditions, identity | Medium | Assimilation pressure, cultural loss |
3.9 Compensation and Liability
3.9.1 Loss and Damage
- Fund established: decided at COP27 in Egypt (2022)
- Operationalization: agreed at COP28 (2023), with initial pledges of about US$700 million
- Scope: climate-caused losses including displacement, both economic and non-economic
- Scale gap: initial pledges are tiny compared with estimates such as loss and damage costs in developing countries of US$290-580 billion a year by 2030 (Markandya and González-Eguino, 2019)
- Open questions: who pays, how much, and what qualifies
3.9.2 Liability Theories
- Historical responsibility: states with large cumulative emissions should bear a corresponding burden
- Polluter pays principle: those who cause environmental damage bear its costs
- Human rights violations: failure to act on climate may violate fundamental rights (e.g. the Billy case)
- Common but differentiated responsibilities: all states are responsible, developed states more so
- State responsibility: states that fail to meet climate obligations are responsible for the consequences (see the ICJ advisory opinion)
3.10 Proposed International Legal Frameworks
3.10.1 Reform Pathways
| Pathway | Advantages | Disadvantages | Outlook (qualitative) |
|---|---|---|---|
| Protocol or amendment to the 1951 Convention | Builds on the existing framework, clear protection | Strong political resistance and long timescale | Low in the near term |
| New climate displacement convention | Comprehensive solution tailored to climate displacement | Requires broad ratification and much time | Medium- to long-term task |
| Expansion of regional frameworks | Politically feasible, context-appropriate | Inconsistent global coverage | Already under way |
| Bilateral and multilateral agreements | Flexible and fast | Patchwork protection | Spreading (e.g. Falepili Union) |
| Expanded humanitarian visas | Possible now, without a treaty | Uneven and often temporary protection | Expanding |
| Climate passport idea | A new approach: an international travel document for the displaced | Needs broad acceptance; unclear status | Under discussion |
3.10.2 The Peninsula Principles (2013)
- Adopted: 18 August 2013, Mornington Peninsula, Victoria, Australia, convened by the NGO Displacement Solutions
- Nature: non-binding guidance
- Scope: climate displacement within states
Core principles: prevention (avoiding forced movement through mitigation and adaptation), protection (guaranteeing human rights), participation (affected communities in decision-making), non-discrimination, international cooperation, durable solutions
Rights included: prior notice and participation, support for safe movement and resettlement, choice between return and permanent resettlement, family unity, rights to education, health care and housing, livelihoods and work
3.10.3 The Limoges Draft Convention (2008)
- Proposed by: researchers at the University of Limoges, France (including Professor Michel Prieur), 2008
- Scope: individuals, families and communities forced to leave their homes by sudden or gradual environmental disasters
- Main content: legal status for environmentally displaced persons, non-refoulement, a dedicated international agency and fund, responsibility-sharing
- Status: never formally adopted, but an important reference point for academic and policy debate
3.11 Documentation and Identification
Proper documentation is essential to protecting the rights of climate refugees.
| Document Type | Purpose | Issuing Authority | Validity |
|---|---|---|---|
| Passport or travel document | Border crossing and identification | Government of nationality (or a host-state travel document) | Varies by country |
| Protection or residence application | Applying for legal status | Host-country immigration authority | Until processed |
| Residence permit | Lawful stay | Host government | Varies by scheme |
| Work permit | Lawful employment | Host labour or immigration authority | Varies by scheme |
| Medical records | Continuity of care | Health providers | Kept permanently |
| Educational certificates | Recognition of qualifications | Institutions in the country of origin | Kept permanently |
- Difficulty proving legal status
- Restricted access to health, education and financial services
- Vulnerability to illegal employment and trafficking
- Difficulty applying for family reunification
- Risk of statelessness
- Portable digital identity systems (with consent and privacy safeguards)
- Interoperable record standards across agencies (WIA-ENE-069)
- Careful use of biometric registration
- Replacement documents issued through international cooperation
3.12 Legal Advocacy and Support
3.12.1 Key Organizations
| Organization | Type | Main Activities | Area of Operation |
|---|---|---|---|
| UNHCR | UN agency | Legal guidance, protection policy, advocacy on protection in disaster and climate contexts | Worldwide |
| International Refugee Assistance Project (IRAP) | NGO | Free legal services, policy advocacy | North America, Middle East and elsewhere |
| Refugee Law Initiative (RLI, University of London) | Research institute | Research and teaching on refugee and displacement law | Worldwide |
| European Council on Refugees and Exiles (ECRE) | NGO network | Legal advocacy, policy development | Europe |
| National human rights institutions | National bodies | Investigation and remedy of rights violations | Respective countries |
3.12.2 Effective Advocacy Strategies
- Strategic litigation: bring test cases that set precedents
- Human rights bodies: use UN treaty bodies and regional human rights courts
- Norm development: support the creation of new legal instruments
- National law reform: press for domestic legal protection
- Public awareness: build political will through education and engagement
- Evidence building: document cases and demonstrate the need for protection
- Coalition building: unite affected states, civil society and sympathetic governments
3.13 Conclusion
Legal protection for climate refugees remains inadequate. The 1951 Refugee Convention does not explicitly include climate change, leaving many climate-displaced people in a legal gap. Yet the Teitiota decision, the Billy case and the ICJ advisory opinion are widening the possibilities for protection through human rights law and international law.
Some states, through New Zealand's Pacific migration schemes, the Australia-Tuvalu Falepili Union and the humanitarian visas of Argentina and Brazil, are creating pathways for disaster and climate migrants, and international efforts such as the Peninsula Principles continue. The next chapter examines early warning and prevention systems that can prevent displacement before such protection becomes necessary.