Currently, there is no widely accepted definition or consensus on who constitutes a climate refugee.[1] Yet millions of people are displaced internally or across borders each year.[2] In response to natural disasters, many flee first to another location within their home country.[3] For example, 8.7 million people were internally displaced by disasters in 2022.[4] While people often return home after natural disasters if possible, several choose instead to cross international borders, particularly when climate change exacerbates other issues.[5] Rising temperatures can affect people directly, such as in Somalia where citizens have fled due to drought, or indirectly, such as in Central America where a lack of resources and work has led to civil unrest.[6] Over the past few years, hurricanes have devastated Honduras, Guatemala, and other Central American countries, depleting their agricultural resources.[7] Given the steady rise of global temperatures, the World Bank estimates that, as a worst case scenario, 216 million people could be displaced due to water scarcity by 2050.[8] Further, experts worry that rising sea levels may wipe out several small islands entirely, leaving many stateless by 2100.[9]
Despite the changing climate and its effects on people’s ability to remain in their communities and home countries, international law does not currently provide protection to those most vulnerable.[10] International treaties, such as the 1951 Convention Relating to the Status of Refugees (Refugee Convention)[11] and the 1967 Protocol Relating to the Status of Refugees (Refugee Protocol),[12] solely protect those crossing international borders who have been persecuted based on their race, religion, nationality, political opinion, or membership in a particular social group.[13] Climate is not considered a protected ground from persecution.[14] Scholars have called for the expansion of the Refugee Convention and Protocol to provide for a pathway for those fleeing climate disasters.[15] However, politics and rising levels of nationalism are limitations to expanding the Refugee Convention and Protocol.[16] Given the current political climate, it is hard to imagine a world in which countries will come together and agree to open their borders for climate refugees.
Instead of expanding these international agreements, some scholars have argued that the International Covenant on Civil and Political Rights (ICCPR) and its non-refoulment principle should already protect climate refugees.[17] The non-refoulment principle “prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations.”[18] In 2020 in the case of Ioane Teitiota v. New Zealand, the U.N. Human Rights Committee first opened the door to the non-refoulment principle applying to climate refugees.[19] Ioane Teitiota applied for refugee status in New Zealand because his home country, Kiribati, was at risk of sinking in the next ten to fifteen years due to rising sea levels.[20] Teitiota argued that his life was endangered as a result of climate change and that New Zealand violated the non-refoulment principle by removing him back to Kiribati.[21] While the Court did not rule for Teitiota, finding that his life was not imminently threatened, it was still a groundbreaking decision because “it recognized, for the first time, that nations have a non-refoulement obligation prohibiting them from forcibly returning an individual to a country where climate change could arbitrarily deprive them of the ‘right to life’ enumerated in ICCPR Article 6.” [22] However, the standard for imminent threat of life remains very high.[23]The Court found that because it was only difficult, not impossible, for Teitiota to access potable water, the threat to his life was not imminent.[24]
Other experts instead opine that domestic solutions such as humanitarian visas and temporary protected status are viable options for climate refugees.[25] However, temporary protected status is just that: temporary. It is vulnerable to changing politics and administrations and leaves people in legal limbo. Further, many people who apply for a work permit through temporary protected status end up waiting several months to a year,[26] just in time for their status to be taken away. This alone is not a sustainable pathway to stability for those fleeing due to climate change. The solution needs to be two-fold. Simply putting a band-aid on the situation by allowing people to have temporary status ignores the root of the issue.
Enhancing protection for climate refugees requires both long lasting international legal action and temporary domestic solutions. Long lasting legal action needs to include amending the Refugee Convention and Protocol to provide for protection for climate refugees. The Refugee Convention and Protocol are both over seventy years old, and our world and climate have changed drastically since then. Long lasting legal action also needs to include Courts interpreting a lower standard for the non-refoulment principle; for people like Ioane Teitiota, it is not a matter of if life will be threatened by climate change, but when. Expanding domestic solutions includes expanding temporary protected status and humanitarian visas, but in an expedited manner so people are left in less of a legal limbo. However, even with these international and domestic legal actions, it will still not be enough without concurrent efforts to combat climate change.
[1] Lawrence Huang, Climate Migration 101: An Explainer, Migration Pol’y Inst. (Nov. 2023) https://www.migrationpolicy.org/article/climate-migration-101-explainer.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Caitlan M. Sussman, A Global Migration Framework Under Water: How Can the International Community Protect Climate Refugees?, 2 Chicago J. Int’l L. Online 41 (2023), https://cjil.uchicago.edu/online-archive/global-migration-framework-under-water-how-can-international-community-protect.
[8] Huang, supra note 1.
[9] Marija Dobrić, Rising Statelessness Due to Disappearing Island States: Does the Current Status of International Law Offer Sufficient Protection?, 1(1) Statelessness & Citizenship Rev.42, 43-44 (2019).
[10] See Huang, supra note 1.
[11] See generally Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150 [hereinafter 1951 Convention].
[12] See generally Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267 [hereinafter 1967 Protocol].
[13] 1951 Convention, supra note 11.
[14] Id.
[15] Sussman, supra note 7.
[16] See id.
[17] Id.
[18] OHCR, The Principle of Non-Refoulment Under International Human Rights Law (2018).
[19] Human Rights Committee, Ioane Teitiota v. New Zealand, U.N. Doc. CCPR/C/127/D/2728/2016 (Jan. 7, 2020).
[20] Id.
[21] Id.
[22] Sussman, supra note 7.
[23] Id.
[24] Id.
[25]Lawyers for Civil Rights, TPS Can Alleviate Impacts of Migrant Crisis, (Mar. 6, 2024), https://lawyersforcivilrights.org/our-impact/race-and-climate/tps-can-alleviate-impacts-of-migrant-crisis/.
[26] Kelly Mena, Venezuelan Migrants Welcome TPS Extension, Still Waiting on Work Permits, Spectrum News NY (Sept. 25, 2023), https://ny1.com/nyc/all-boroughs/politics/2023/09/25/venezuelan-migrants-temporary-protected-status-legal-work-permits-new-york-city-mayor-eric-adams-president-joe-biden.
