From Rising Seas to Legal Gaps – From a fragmented to a mosaic approach on climate refugeeism

by stellascocco | Feb 11, 2025 | The Urban Media Lab

Stella Scocco

Over the last fifty years, international law has adapted to meet the demands of new transnational challenges in our interconnected and globalized world. Among these challenges, the rise of environmental law has gained particular prominence, especially in the context of climate change and its far-reaching consequences, such as the phenomenon of climate refugeeism.

Despite the growing recognition of the plight of those affected by environmental changes, there remains a lack of a universally accepted definition for the term “climate refugee.” This ambiguity complicates the legal status and protection of these individuals. While climate change manifests in various detrimental ways, including the alarming rise in sea levels, drought, and increasingly severe weather events, the affected typically do not meet the criteria of persecution established by the 1951 Refugee Convention (McAdam 2011, 10). Consequently, they find themselves in a legal gap, lacking adequate international protection and support.

Identifying the Gap – The nexus between Migration law and Human rights law

Still, exclusion from refugee status does not allow a country to deny protection. In 2019, the Committee on Civil and Political Rights (CCPR) addressed non-refoulement and climate change in the Ioane Teitiota v. New Zealand ruling. The Committee stated that the effects of denying protection in receiving states may violate individuals’ rights under articles 6 and 7 of the Covenant, thus activating the non-refoulement obligations of sending states before the risk is realized (Ioane Teitiota v. New Zealand 2020, 2.1).

While human rights, combined with the principle of non-refoulement, can offer protection when migration law falls short, it should not necessarily be viewed as a viable alternative. Non-refoulement primarily guards against expulsion, allowing states a margin of appreciation in implementation. The Committee against Torture (UNCAT) has, for example, highlighted that a breach of Article 3 of the Convention Against Torture does not influence asylum decisions but is simply declaratory. National authorities must only take necessary actions to adhere to Article 3, which can be legal (such as granting a residence permit) or political (such as seeking a third state willing to accept the applicant) (Seid Mortesa Aemei v. Switzerland 1997, p. 11).

The situation for those protected only under non-refoulement varies significantly across jurisdictions. Some countries provide a minimum standard of living, while others grant only basic rights and detain excluded refugees pending deportation. The exclusion often results in limited access to welfare, work, education, social assistance, and family reunification (Dawody 2024, 163). Even if this might be somewhat ambiguous in the case of climate refugees due to soft-law instruments, this gap between Migration and Human Rights laws is still undesirable and at risk of creating unsustainable situations.

Closing the gap – Complementary protection or (re)interpreting the Refugee Convention.

Some countries, like New Zealand, have established a complementary protection status that addresses human rights violations, defining “protected persons” as individuals who have substantial grounds to believe they would face the danger of torture, arbitrary deprivation of life, or cruel, inhuman, or degrading treatment or punishment if deported from the country (Immigration (Refugee and Protection Status Processing) Regulations 2010 reg 8). This status acts as a link between Migration law and Human rights law. The Inter-American Court of Human Rights describes it as a normative development that allows states to protect the rights of individuals who do not qualify for refugee status but cannot return to their home countries due to circumstances in violation of the Convention Against Torture (CAT) or the International Covenant on Civil and Political Rights (ICCPR) (Mcadam 2012, 19-22). This meets the obligation of non-refoulement and safeguards essential human rights, including access to administrative or judicial procedures. However, the problem with jurisdictional differences remains.

Therefore, a reinterpreting of the Refugee Convention through a dynamic interpretation should be explored, allowing rights to evolve with social, cultural, and economic changes. In reference, the European Court of Human Rights (ECtHR) views the European Convention on Human Rights (ECHR) as a living instrument, suggesting that interpretations should reflect current conditions. It is generally regarded as inappropriate to interpret human rights treaties by freezing their meaning according to the initial intentions of the contracting states (Tyrer v. The United Kingdom, 1978).

The Vienna Convention offers interpretation guidelines through systemic integration, conveying that all relevant obligations between parties must be considered (1969 Vienna Convention on the Law of Treaties, 1969, Article 31(3)(c)). The International Law Commission emphasizes that international law is an interconnected legal system where norms relate meaningfully rather than as a random collection. Where multiple standards address a single issue, they should, to the extent possible, be interpreted to give rise to a single set of compatible obligations. For example, one norm may help interpret another as an application, clarification, update, or modification of the latter (International Law Commission, 2006).

One challenge in addressing climate refugees is identifying a clear persecutor. However, even if the governments of Kiribati and Tuvalu are not responsible for climate change, scholars argue that climate refugees flee their governments’ actions, as studies show that governments can exacerbate these crises and increase population vulnerability (Cooper 1998, 503). Another view is that high-polluting countries effectively persecute individuals from high-risk countries by failing to address climate change, knowing the effects on habitability. This negligence exposes these individuals to hazardous and potentially deadly environmental conditions (Rosignoli 2022, 47). The fact that persecution can stem from both state and non-state actors supports this reasoning. Consequently, the issue of governmental protection becomes crucial. However, this situation inverts the traditional refugee paradigm, as climate refugees would be fleeing to their persecutors (or from private actors that the government is unable or unwilling to protect them from) rather than escaping from them (Rosignoli 2022, 47).

Additionally, the persecution must correlate with one of the reasons in the Convention. Identifying climate refugees as a “particular social group” is challenging as, per UNHCR guidelines, they must share a common trait beyond mere persecution (UN High Commissioner for Refugees 2019, 37-50). One of the challenges in addressing this issue is that the impacts of climate change are often indistinguishable rather than linked to specific characteristics like a person’s background or beliefs. While climate change affects certain regions of the world disproportionately, the root cause is not tied to the affected populations’ nationality, beliefs, or ethnicity.

Furthermore, “particular social group” is interpreted restrictively, requiring that the unifying characteristic be inherent or essential to one’s identity. The argument for this interpretation stems from the intention not to provide protection for all the reasons mentioned in the 1948 Universal Declaration of Human Rights, indicating that some omissions were intentional by the signing states of the Refugee Convention (UN High Commissioner for Refugees 2019, 3).

This interpretation would suggest that gender was intentionally omitted from the Convention since the Universal Declaration includes it. Nonetheless, due to advancements in women’s rights, gender is now considered within the scope. The UK Immigration Appeal Tribunal, in Case Islam (A.P.) v. Secretary of State, highlighted the importance of the preamble as they establish that all human beings are entitled to fundamental rights and emphasize that combating discrimination is a key purpose of the Convention. The preamble’s reference to the Universal Declaration, which upholds the principle of equality for all, supports this interpretation (Islam (A.P.) v. Secretary of State 1999, 5). This reasoning by the Court adheres to a dynamic interpretation rather than solely analyzing the original intent. The same or similar reasoning could, for example, be explored in relation to nationality or origin.

Additionally, the Swedish delegate proposed adding the ground for persecution of a particular social group to the Convention in the final stages of negotiation due to an observation that certain groups deserving of protection otherwise, in the future, risk being excluded. The proposal was approved without significant discussion (Rosignoli 2022, 32). Therefore, the specific group constellations referred to remain unknown, indicating an intention for flexibility in interpreting the concept.

In conclusion, the question of how international law should address climate refugees is challenging and complex. This issue is inherently difficult to manage within the individualized legal assessments that underpin migration law since it does not adequately capture the collective and systemic nature of climate-related harms. The situation of climate refugees is quite similar to that of economic migrants, who are generally considered ineligible for international protection. However, the connection between inadequate environmental protection, rising emissions, and displacement introduces a dimension that resembles the persecution outlined in the Refugee Convention and the “man-made” criteria found in regional regulations.

Countries with the highest carbon dioxide emissions have historically relied on fossil fuels and industrial production to achieve economic growth, often without considering environmental impacts. Those living in vulnerable regions and developing countries are unequally affected by these effects, with displacement being one of the most severe consequences. This situation is profoundly unjust, as those who are least responsible for the climate crisis are suffering the most, creating a discriminating systemic injustice.

Evidently, access to human rights is unevenly distributed, and generalized inequality does not give the right to asylum. However, the current situation is primarily driven by the international community’s action (or lack thereof). It significantly impacts access to human rights in a discriminatory manner that contradicts the Universal Declaration and the fundamental principles of the Refugee Convention.

This strengthens the interpretation of refugee status as a dynamic concept that is not fixed over time; instead, it needs to evolve in response to the shifting landscape of human rights protection across the globe. This evolution is crucial, as it ensures the relevance and effectiveness of the principles outlined in the Refugee Convention in addressing contemporary challenges. By adapting to new realities, this interpretation reinforces the fundamental aim of the Convention, which is to protect individuals fleeing persecution and inequality. Moreover, it addresses the urgent need to eradicate discrimination individuals may face when seeking access to basic rights and freedoms.

It is in the international community’s interest to avoid creating a situation where non-refoulement makes return impossible. Yet, it remains unclear what rights should be granted beyond the mere right to stay within the country’s borders. It is therefore desirable to either create an international complementary protection status for individuals at risk of human rights violations due to climate change, i.e., climate refugees, or to integrate Migration law and Human rights law through a holistic, systematic interpretation of the Refugee Convention’s scope.

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Bibliography

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