Small island nations such as Tuvalu and Kiribati face existential threats from rising sea levels, leading to forced displacement.[1] Unfortunately, current international legal frameworks fail to protect these climate-displaced populations adequately. The 1951 Refugee Convention does not recognize climate migrants, leaving island nations without clear resettlement pathways.[2] As climate change accelerates, rising sea levels threaten to render entire nations uninhabitable and displace “hundreds of millions of people.” [3] Yet international law remains ill-equipped to address this crisis, one example being the Blue Pacific Continent was “forged through the World Wars, patchworked via the United Nations Convention on the Law of the Sea, coloured by globalization and now threatened to be torn by the impacts of sea-level rise.”[4] The impacts of rising sea levels will eventually submerge land which in turn will threaten the very existence of States.[5] Legal reforms are necessary to provide clearer protections for displaced populations and ensure their rights to relocation and resettlement.
The Intergovernmental Panel on Climate Change (“IPCC”) reports that sea levels are rising at an accelerating rate, threatening to submerge entire nations within decades.[6] Unlike traditional refugees, climate migrants from island nations do not flee persecution but face an uninhabitable homeland.[7] Therefore, climate migrants lack protection under the 1951 Refugee Convention.[8] Without legal recognition, they lack rights to asylum or permanent resettlement, leaving them in legal limbo.[9] COP 27 recognized forced displacement due to climate change as a loss when establishing a new loss and damage fund for the countries vulnerable to climate change.[10] However, COP27 failed to implement any plans to mutually enforce prior pledges and promises, thus the legal void for climate refugees remains.[11] The term “climate refugees” is often used in media discourse, but it is not legally recognized under the 1951 Refugee Convention.[12] The 1951 Convention defines refugees as those with a 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.[13]
Since climate change does not constitute persecution, climate-displaced persons remain outside its legal protections. The 1951 Convention Relating to the Status of Refugees fails to account for individuals displaced by environmental factors.[14] Moreover, cases like Teitiota v. New Zealand highlighted the gaps in legal protections, when the United Nations (“UN”) Human Rights Committee alleged that New Zealand had violated Teitiota’s human rights due to the effects of sea level rise on his home in Kiribati, but ultimately denied his refugee status because there was not sufficient evidence to demonstrate immediate and serious risk to life.[15]
While human rights instruments, such as the International Covenant on Civil and Political Rights (“ICCPR”), recognize the right to life and dignity, they do not provide a clear legal pathway for resettlement or relocation.[16] Though these frameworks affirm fundamental human rights, they do not require nations to accept climate migrants, further complicating the issue of legal recognition and protection for climate-displaced persons.[17]
Several reforms are necessary to address the legal vacuum surrounding climate-displaced persons.[18] Expanding the Refugee Convention’s definition to recognize climate-induced displacement as a valid ground for refugee status would be critical in providing protection for climate migrants. The Council of Europe proposed using the 1998 UN Guiding Principles on Internal Displacement as model international framework for protecting displaced persons crossing international borders due to climate change and natural disasters.[19] This framework could act as a subsidiary of the 1951 Convention and help address the overly restrictive causation requirement to provide evidence for climate change.[20] Also, developed countries who have previously agreed to heightened responsibility to address climate change under the UN Framework Convention on Climate Change (“UNFCCC”) need actual enforcement mechanisms to enhance the very accountability they agreed to.[21] Finally, the traditional legal concepts of standing, imminence, and human-based conflict need to be adjusted so climate refugees like Teitiota’s family are not legal castaways.[22]
The growing hostility towards immigration raise concerns that expanding refugee protections to include climate-displaced populations raises concerns regarding state sovereignty and potential economic burdens.[23] Critics argue that such expansions could infringe upon a nation’s authority to control its borders and immigration policies, a fundamental aspect of sovereignty.[24] The Brookings Institution report noted that extending rights to migrants can be beneficial, but it may also lead to significant financial and administrative challenges for host countries.[25] Others contend that climate displacement should be addressed through development aid rather than refugee protection.[26] These arguments underscore the complexities involved in modifying international legal frameworks to accommodate climate-displaced populations. Balancing humanitarian obligations with the preservation of state sovereignty and economic stability remains a contentious issue in the discourse on refugee protections.
The legal framework for protecting climate-displaced persons remains inadequate. Given the urgency of rising sea levels, international law must evolve to accommodate the realities of climate migration. Expanding refugee definitions, establishing new legal mechanisms, and enhancing global cooperation are essential to protect vulnerable small island populations before their homelands become uninhabitable.
[1] Pat Brennan, NASA Sea Level Team Examines an Island Nation at Risk, NASA Earth Data (Sep. 3, 2024), https://sealevel.nasa.gov/news/276/nasa-sea-level-team-examines-an-island-nation-at-risk/.
[2] See U.N. 1951 Convention Relating to the Status of Refugees, art. 1(a)(2), opened for signature July 28, 1951, 189 U.N.T.S. 137 [hereinafter: 1951 Convention Relating to the Status of Refugees].
[3] Press Release, Security Council, Climate Change-induced Sea-Level Rise Direct Threat to Millions around World, Secretary-General Tells Security Council, U.N. Press Release SC/15199 (Feb. 14, 2023).
[4] Id.
[5] Id.
[6] See Michael Oppenheimer et al., Sea Level Rise and Implications for Low-Lying Islands, Coasts and Communities, in IPCC Special Report on the Ocean and Cryosphere in a Changing Climate ch.4, https://www.ipcc.ch/srocc/chapter/chapter-4-sea-level-rise-and-implications-for-low-lying-islands-coasts-and-communities/.
[7] Joanna Apap & Sami James Harju, The concept of ‘climate refugee’, EPRS (October 2023), https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/698753/EPRS_BRI(2021)698753_EN.pdf.
[8] Id. at 1.
[9] Id.
[10] Id. at 10.
[11] Id.
[12] 1951 Convention Relating to the Status of Refugees, supra note 2.
[13] Id.
[14] Id.
[15] U.N. Human Rights Committee (“HRC”), Views Adopted by the Committee Under Article 5(a) of the Optional Protocol, Concerning Communication No. 2728/2016, U.N. Doc. C/127/2728, (Oct. 24, 2019) [hereinafter: Teitiota v. New Zealand].
[16] See U.N. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter: ICCPR].
[17] Id.
[18] Madison Shaff, International Law and Climate Displacement: Why a Climate Justice Approach is Needed, 52 Tex. Envtl. L.J. 59, 72 (2022).
[19] See Eur. Parl. Ass. Deb. 9th Sess. 1862 (Jan. 30, 2009) (stating “[E]ncourage the United Nations and its other relevant partners to seek avenues for extending the Guiding Principles to include people displaced by gradual environmental degradation, and to consider developing similar guiding principles or guidelines to cover the rights of those moving across international borders for compelling environmental reasons (”external displacement”)”).
[20] Apap, supra note 7, at 8.
[21] Shaff, supra note 17, at 79.
[22] Mariah Stephens, The Great Climate Migration: A Critique of Global Legal Standards of Climate Change-Caused Harm, 23 Sustainable Dev. L. & Pol’y 16 (2023).
[23] Natalia Banulescu-Bogdan, Public Opinion of Climate Migrants, Migration Policy Institute (Sep. 2024), https://www.migrationpolicy.org/sites/default/files/publications/mpi-public-support-climate-migrants-2024_final.pdf.
[24] Id. at 7.
[25] Paolo Verme, Theory and evidence on the impact of refugees on host communities, World Bank (March 28, 2023), https://blogs.worldbank.org/en/dev4peace/theory-and-evidence-impact-refugees-host-communities?.
[26] Dany Baher & Meagan Dooley, Refugees as assets not burdens 20 (2020).
