CLIMATE REFUGEES LEFT ADRIFT IN LEGAL

IMPASSE: THE NEED FOR INTERNATIONAL

LEGAL RECOGNITION OF PEOPLE DISPLACED
BY CLIMATE CHANGE

Elise Hartnett*

I. The displacement of people due to climate

change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 765
II. Current legal framework protecting people
displaced by the impacts of climate change . . . . . . 768
A. Shortcomings in the United Nation’s approach to
external climate refugees . . . . . . . . . . . . . . . . . . 769
B. Other regional instruments that offer protection . . 771
III. Moving towards an internationally recognized
definition for “climate refugees” . . . . . . . . . . . . . . 773
IV. Conclusion: Is there potential to resolve
the international legal protection gap? . . . . . . . . 777

I. The displacement of people due to climate change

One of the most noteworthy impacts of climate change

is human migration.1 Every day, an immeasurable number
of people are forced to leave their homes, sometimes cross-
ing national borders, due to climate-change induced floods,
droughts, landslides, storms, wildfires, and other extreme
weather conditions.2 Environmental threats such as deser-
tification, rising sea levels, and extreme weather events addi-
tionally challenge people’s enjoyment of recognized human
rights—including rights to life, water, sanitation, food health,

* LL.M. Candidate in International Legal Studies, New York University

School of Law. Graduate Editor of the N.Y.U. Journal of International Law and
Politics, LL.M., Catholic University of Leuven.
1. Steve Lonergan, The Role of Environmental Degradation in Popula-
tion Displacement, 4 Environmental Change and Security Project Report 5, 5
(1998).
2. Avidan Kent & Simon Behrman, Resettlement and Rights of Climate
Refugees, 65-67 (2018); Dina Ionesco, Daria Mokhnacheva, & François
Gemenne, The Atlas of Environmental Migration 12 (2017).

765
766 INTERNATIONAL LAW AND POLITICS [Vol. 56:765

and adequate housing.3 This leads to increased vulnerability,

limited human mobility, and human rights violations.4
Over the last few decades, the general trend of climate
migration has only been increasing, with many reports citing
environmentalist Norman Myers’ prediction of two hundred
million climate refugees by the middle of this century.5 Though
difficult to estimate6, the U.N. International Organization
for Migration has similarly forecasted an expected twenty-five
million to one billion environmental migrants by 2050.7 Further-
more, the adverse climate effects will be disproportionately felt
globally, resulting in the poorest and most climate-vulnerable
people having the fewest resources—whether technological,
economic, or social—to adapt or mitigate the effects, and few
legal pathways available to them.8
This lack of protection mirrors deep societal inequalities,
as the countries who have least contributed to global warming

3. ILO Convention No. 169 Concerning Indigenous and Tribal Peoples

in Independent Countries (27 June, 1989); African Charter on Human and
Peoples’ Rights (27 June, 1981); U.N. Report of the Conference on the Hu-
man Environment (Stockholm Declaration), U.N. Doc. A/CONF.48/14/
Rev.1 (5–16 June, 1972); European Parliament Briefing PE 698.753, The
Concept of ‘Climate Refugee’, Towards a Possible Definition, 2 (October 2021) 7
[hereinafter: EU Parliament Briefing].
4. UNHCR, Climate Change, Displacement and Human Rights (March 2022),
https://www.unhcr.org/sites/default/files/legacy-pdf/6242ea7c4.pdf
[hereinafter: UNHCR Briefing]; Kent & Behrman, supra note 2, at 2.
5. IDMC Report, 2023 Global Report on Internal Displacement (11 May,
2023) https://www.internal-displacement.org/research-areas/Displacement-
disasters-and-climate-change [hereinafter: IDMC Report]; Kent & Behrman,
supra note 2, at 1–2; Norman Myers, Environmental refugees: a growing phenom-
enon of the 21st century, 357 Philosophical Transactions of the Royal Society of
London 609, 609 (2002).
6. Francesco Bassetti, Environmental Migrants: Up to 1 Billion by 2050,
Foresight: The CNCC Observatory On Climate Policies & Futures (22 May,
2019) [hereinafter: Bassetti, Environmental Migrants].
7. International Organization for Migration (IOM), A Complex Nexus,
https://www.iom.int/complex-nexus; Inst. For Econ. & Peace (IEP) Press
Release, Ecological Threat Register Press Release (Sept. 9, 2020) https://www.
economicsandpeace.org/wp-content/uploads/2020/09/Ecological-Threat-
Register-Press-Release-27.08-FINAL.pdf; Tyler Bergeron, No Refuge for ‘Climate
Refugees’ in International Law, Environmental, Natural Resources, & Energy
Law Blog (January 20, 2023) [hereinafter: Bergeron, Climate Refugees].
8. Bergeron, Climate Refugees, supra note 7; Kent & Behrman, supra note 2,
at 4.
2024] CLIMATE REFUGEES LEFT ADRIFT IN LEGAL IMPASSE 767

are bearing the brunt of its negative effects.9 For example,

inhabitants currently most at risk of being displaced by climate
disasters are those in the developing island states in the Pacific,
due to the thermal expansion of ocean water submerging their
islands.10 While some countries have access agreements with
Australia, New Zealand and the United States, many countries
carrying the greatest potential migration pressures—such as
Tuvalu, Kiribati, and Nauru—have the fewest international
destination options.11 Moreover, the insufficient data on cli-
mate migration suggests that climate mobility mostly remains
within the boundaries of countries, and that these internally
displaced people have equally few legal pathways to rely on for
protection.12
In its 2023 report, the Climate Overshoot Commission con-
cluded that projected temperatures are highly likely to exceed
the Paris Agreement goal of 1.5°C.13 Consequential effects such
as reduction of soil fertility, desertification and coastal ero-
sion risk worsening the impacts on human health, food
security, water availability, social stability, and ecosystems.14

9. Though climate change may seem like an equal-opportunity crisis,

unrelated to countries’ incomes or GDPs, higher-income countries generally
have more resources to deal with unavoidable impacts and low-income coun-
tries do not. See Kristalina Georgieva, et al., Poor and Vulnerable Countries Need
Support to Adapt to Climate Change, IMF BLOG (March 23, 2022) https://www.
imf.org/en/Blogs/Articles/2022/03/23/blog032322-poor-and-vulnerable-
countris-need-support-to-adapt-to-climate-change; UNHCR Briefing, supra
note 4.
10. Kent & Behrman, supra note 2, at 5; Intergovernmental Panel on Cli-
mate Change Report, Choices Made Now are Critical for the Future of Our Ocean
and Cryosphere (25 Sept., 2019); Amrita Deshmukh, Disappearing Island Nations
Are the Sinking Reality of Climate Change, QRIUS (May 18, 2019).
11. John Campbell and Olivia Warrick, Climate Change and Migration Issues
in the Pacific, United Nations Economic and Social Commission for Asia and the
Pacific Report (Aug. 1, 2014) 3; IDMC Report, supra note 5.
12. Climate Overshoot Commission, Reducing the Risk of Climate Overshoot
(Sept. 2023), at 71 [hereinafter: COC 2023 Report]; Intergovernmental Panel
on Climate Change Sixth Assessment Report, Climate Change 2022: Impacts, Adapta-
tion and Vulnerability, AR6 WG2 1080-1083 (Aug. 7, 2021) [hereinafter IPCC
2022 Report]; IDMC Report, supra note 5.
13. COC 2023 Report, supra note 12, at 8; IPCC 2022 Report, supra note 12, at 19.
14. Bassetti, Environmental Migrants, supra note 7; EU Parliament Brief-
ing, supra note 3 at 3; Viviane Clement et al., Groundswell Part 2: Acting on
Internal Climate Migration, WORLD BANK GROUP xxii (2021), https://
openknowledge.worldbank.org/handle/10986/36248; Bergeron, Climate
Refugees, supra note 7.
768 INTERNATIONAL LAW AND POLITICS [Vol. 56:765

Still, climate-induced migrants currently remain within what

has been defined by many as a legal “protection gap” urgently
in need of action.15 So far, the international community’s
response to this global displacement issue has been limited,
and protection for the people affected remains inadequate.16
This Comment will explore the current legal framework
protecting people displaced by the impacts of climate change,
while addressing its structure and shortcomings. It will discuss
the value of an internationally recognized definition for “cli-
mate refugees”, whilst highlighting the complexities and criti-
cisms any defining exercise may face. Finally, the Comment will
touch on the feasibility of resolving the existing legal protecting
gap and the potential of introducing a new legal instrument
protecting the rights of “climate refugees”.

II. Current legal framework protecting people displaced

by the impacts of climate change

Many scholars argue that the protection gap for climate ref-
ugees is caused by an overly restrictive definition of refugees in
the United Nation’s legal frameworks, combined with consid-
erably weak or overly general other international legal instru-
ments. Consequently, these vulnerable groups are deprived of
legal remedies, either in the form of rights to enter another
state for refuge, financial compensation or a legal status that
will allow them to begin their lives elsewhere.17

15. Kent & Behrman, supra note 2, at 9; Simon Behrman & Avidan Kent
(eds.), Climate Refugees: Beyond the Legal Impasse? (2018) [hereinafter:
Behrman & Kent, Legal Impasse]; Michael Gerrard & Greggory Wannier (eds.),
Threatened Island Nations: Legal Implications of Rising Seas and a Changing
Climate (2013); Walter Kälin & Nina Schrepfer, Protecting people crossing borders
in the context of climate change: normative gaps and possible approaches, 24 UNHCR
Background Paper (Feb. 2012) [hereinafter: Kälin & Schrepfer]; COC 2023
Report, supra note 12, at 13; IPCC 2022 Report, supra note 12, at 21; Interna-
tional Federation of Red Cross and Red Crescent Societies, The Cost of Doing
Nothing – The Humanitarian Price of Climate Change and How it Can Be Avoided,
(2019) at 2, 5.
16. EU Parliament Briefing, supra note 3, at 1-2.
17. Kent & Behrman, supra note 2, at 9-11; Kälin & Schrepfer, supra
note 15, at 14.
2024] CLIMATE REFUGEES LEFT ADRIFT IN LEGAL IMPASSE 769

A. Shortcomings in the United Nation’s approach to external

climate refugees

The 1951 United Nations Convention Relating to the Status

of Refugees and its 1967 Protocol Relating to the Status of Refugees
(together, “the 1951 Convention”18) is the most influential
international refugee legal instrument, as it determines who
is a refugee, what legal protections, assistance and social rights
they are entitled to receive, and the obligations refugees owe
to their host countries. Following the Convention, a refugee is
a person who is outside his or her country of national-
ity or habitual residence; has a well-founded fear of
being persecuted because of his or her race, religion,
nationality membership of a particular social group or
political opinion; and is unable or unwilling to avail
him or herself of the protection of that country, or to
return there, for fear of persecution.19
Once refugee status has been determined, States are
required to provide asylum for qualifying refugees and, under
the principal of non-refoulement, prevented from sending a
refugee to a territory where they fear threats to their life or
freedom.20 Nevertheless, the 1951 Convention extends only to
people who have a well-founded fear of being persecuted on a
limited list of grounds, and neither this convention nor its addi-
tional Protocol acknowledges climate hazard as valid grounds
to acquire refugee status. Therefore, most climate displaced
persons will not qualify for refugee status under the 1951 Con-
vention, except for those leaving areas where climate change
effects caused destabilization, such as food scarcity causing
regional conflict.21 This keeps the existence of climate refugees
uncertain in the context of law and practice.22
Notwithstanding a lack of coverage in the refugee defini-
tion, the United Nations has increasingly expressed its recogni-
tion of the role of climate change in the forced displacement

18. UNHCR Office, Convention and Protocol Relating to the Status of Refugees:
Introductory Note 2 (Dec. 2010).
19. U.N. Convention Relating to the Status of Refugees, 189 U.N.T.S. 137
(July 28, 1951) Art. I(A)(2) [hereinafter: 1951 Convention].
20. Id. at 3.
21. Bergeron, Climate Refugees, supra note 7.
22. EU Parliament Briefing, supra note 3, at 3.
770 INTERNATIONAL LAW AND POLITICS [Vol. 56:765

of people.23 On the issue of internal displacement, the non-

binding 1998 U.N. Guiding Principles on Internal Displacement
provide a framework for protecting victims of natural disasters
who do not cross an international border.24 In 2009, the Coun-
cil of Europe suggested that these principles could be taken as
a model to develop a global guiding framework for externally
displaced people.25 Though the principles have not (yet) been
extended to cross-border displacement, they were used to draft
other complementary regional protection instruments.26
In 2016, the U.N. General Assembly adopted the New York
Declaration for Refugees and Migrants, in which it called for the
development of two global compacts, one on refugees and the
other on “other migrants”. The second, the Global Compact for
Safe, Orderly and Regular Migration, acknowledges the urgency of
climate displacement under its Second Objective.27 It requires
states to combat “environmental degradation and ensure effec-
tive responses to natural disasters and the adverse impacts of
climate change,” including migration.28
Additionally, in the last few U.N. Climate Change
Conferences­ —including COP26—the issue of people being
displaced due to climate change has consistently been
addressed.29 Even with this acknowledgement in international
fora, the people immediately concerned by this issue still have

23. UNHCR Briefing; European Parliament, The European Green Deal, COM
(2019) 640 Final Communication from the Commission (Dec. 11, 2019).
24. U.N. OHCHR and Economic and Social Council, Guiding Principles
on Internal Displacement, E/CN.4/1998/53/Add.2 (Feb. 11, 1998); EU Par-
liament Briefing, supra note 3, at 7; Kälin & Schrepfer, supra note 15, at 14.
25. See Resolution 1862 of the Parliamentary Assembly of the Council
of Europe, Environmentally induced migration and displacement: a 21st-century
challenge, bullet-point 6.5 (Jan. 30, 2009).
26. African Union Convention for the Protection and Assistance of Inter-
nally Displaced Persons in Africa (2009) [hereinafter: Kampala Convention];
EU Parliament Briefing, supra note 3, at 7–9.
27. U.N. GA Draft Outcome Document of the Intergovernmental Confer-
ence to Adopt the Global Compact for Safe, Orderly and Regular Migration,
Annex, A/CONF.231/3 (July 30, 2018).
28. U.N. General Assembly, New York Declaration for Refugees and Migrants,
A/RES/71/1, ¶ 43; Kent & Behrman, supra note 2, at 6.
29. U.N. Framework Convention on Climate Change (UNFCCC), Report
of the Conference of the Parties on its twenty-fourth session, FCCC/CP/2018/10,
(March 19, 2019); U.N. Framework Convention on Climate Change
(UNFCCC), Report of the Conference of the Parties on its twenty-sixth session,
FCCC/CP/2021/12, (March 8, 2022).
2024] CLIMATE REFUGEES LEFT ADRIFT IN LEGAL IMPASSE 771

not been granted any official status or legal protection. Host

countries prefer to address the “root of the problem”, by reduc-
ing pollution levels and minimizing climate change, rather
than addressing the people finding themselves in an interna-
tional regulatory void.30

B. Other regional instruments that offer protection

Aside from the 1951 Convention, the only other binding

multinational agreement that offers some expanded protec-
tions to climate displaced persons is a regional African accord,
the 1969 OAU Convention Governing the Specific Aspects of
Refugee Problems in Africa. Binding on all member states of
the OAU, Article 1 of the OAU Convention defines refugee
exactly as in the 1951 Convention, requiring the same “well-
founded fear of…”31 but goes on to state that the term will also
apply to
every person who, owing to external aggression, occu-
pation, foreign domination or events seriously dis-
turbing 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.32
This definition seems rather promising for climate displace-
ment, as those “fleeing events seriously disturbing public order”
could potentially cover climate refugees if given an expansive
interpretation.33 However, it lacks an explicit consideration of
the status of climate refugees and fails to set out states’ obliga-
tions to protect refugees when providing asylum, by leaving it

30. EU Parliament Briefing at 2; International Federation of Red Cross and

Red Crescent Societies, The Cost of Doing Nothing – The Humanitarian Price of
Climate Change and How it Can Be Avoided 2 (2019).
31. Organization of African Unity (OAU), OAU Convention Governing
the Specific Aspects of Refugee Problems in Africa (Sept. 10, 1969), 1001
U.N.T.S. 45, Art. 1 [hereinafter: OAU Convention]; 1951 Convention, supra
note 19.
32. OAU Convention, supra note 31; 1951 Convention, supra note 19, at
art. 1(2); .
33. Kent & Behrman, supra note 2, at 10; Jane McAdam, Climate change dis-
placement and international law: complementary protection standards, UNHCR Back-
ground Paper, Legal and Protection Policy Research Series 14–15 (May 2011).
772 INTERNATIONAL LAW AND POLITICS [Vol. 56:765

up to the discretion of each state’s legislature.34 Moreover, it is

further limited by its regional nature.35
On the other hand, there are a variety of non-binding agree-
ments offering protection to climate displaced persons, such as
the Cartagena Declaration of 1984. This Declaration addresses
the large refugee flows in Central America by “enlarging the
concept of a refugee . . . as far as appropriate and in the light
of the situation prevailing in the region.”36 Similar to the OAU
Convention, the Cartagena Declaration’s definition of refugees
can include climate refugees when climate change events “seri-
ously disturb public order” but, unlike the OAU Convention,
the Cartagena Declaration is not binding. It remains an aspira-
tional set of guidelines for countries to voluntarily incorporate
into their domestic law.37
Another non-binding, milestone legal instrument is the
Nansen initiative38, launched in 2012, by the governments of
Norway and Switzerland.39 It aims to build consensus among
states to implement a protection agenda in accordance with
their specific situations and challenges, including standards of
treatment.40 In 2015, this state-led consultative process resulted
in an agenda for the protection of cross-border displaced per-
sons in the context of disasters and climate change, which was
endorsed by 109 governmental delegations. This non-binding
Protection Agenda set out ten Principles which can be cate-
gorized as soft law or guidelines.41 They synthesize best prac-
tices from around the world in terms of providing effective

34. OAU Convention, supra note 31, at art. 1; 1951 Convention, supra note 19,
at art. 2(1).
35. Bergeron, Climate Refugees supra note 7.
36. Cartagena Declaration on Refugees, Colloquium on the International
Protection of Refugees in Central America, Mexico and Panama art. (3),
(Nov. 22, 1984) [hereinafter Cartagena Declaration].
37. Id. at 36.
38. Nansen Initiative, Agenda for the Protection of Cross-Border Dis-
placed Persons in the Context of Disasters and Climate Change: Volume 1 7
(2015) [hereinafter: Nansen Initiative].
39. EU Parliament Briefing, supra note 3, at 8.
40. Kent & Behrman, supra note 2, at 13; Nansen Initiative, supra note 38,
at 7.
41. See more on ‘migration as adaptation’: David J. Cantor, Environment,
Mobility and International Law: A New Approach in the Americas, 21 Chicago Jour-
nal of Int’l. L. 3; Susan Martin, Climate Change, Migration and Governance, 16
Global Governance (2010) 397, 399; Thekli Anastasiou, Migration as adapta-
tion: the role of international law in Behrman & Kent, Legal Impasse, supra note 15.
2024] CLIMATE REFUGEES LEFT ADRIFT IN LEGAL IMPASSE 773

protection and assistance for externally displaced people, set-

ting out stakeholders’ roles and responsibilities, emphasizing
the necessity of regional frameworks and the utilization of
existing norms of international law, all while developing a new
instrument with the UNHCR.42 Although the Nansen initiative
opened up new perspectives and initiatives for the recognition
of externally displaced climate refugees, a legal void regarding
their status remains.43

III. Moving towards an internationally recognized

definition for “climate refugees”

To establish a meaningful set of rights and duties for people

displaced due to climate change, there must at least be some
definitional clarity on who this group of vulnerable peoples is.44
In 2020, Norwegian Professor Isabel Borges, explained: “The
absence of an accurate definition of what constitutes a person
displaced by environmental factors has resulted in the inability
to measure exactly the numbers of existing and potential dis-
placement flows”.45
This defining exercise has been historically complex,
requiring any future definition to take into account pre-existing
discourse surrounding attempts to define “environmental
refugees”.46 Additionally, since internal displacement is cov-
ered by instruments of international human rights law and the
Guiding Principles on Internal Displacement, the main focus at
present is on defining the people forced to cross international
boundaries due to climate change.47

42. Kent & Behrman, supra note 2 at 6; Nansen Initiative, supra note 38, at
principles II-IX.
43. Platform on Disaster Displacement, Towards Better Protection for People
Displaced Across Borders in the Context of Disasters and Climate Change, PDD Strat-
egy 2019–2023 (2023) https://disasterdisplacement.org/the-platform/our-
response; EU Parliament Briefing, supra note 3, at 8.
44. Kent & Behrman, supra note 2, at 41.
45. EU Parliament Briefing, supra note 3, at 4, 11; European Economic
and Social Committee, Climate Refugees Account for More than Half of All
Migrants But Enjoy Little Protection (last accessed: July 2024) https://
www.eesc.europa.eu/en/news-media/news/climate-refugees-account-
more-half-all-migrants-enjoy-little-protection.
46. Kent & Behrman, supra note 2, at 40.
47. UNHCR, Guiding Principles on Internal Displacement (July 22, 1998); In-
ternational Covenant on Civil and Political Rights, General Assembly Resolution
774 INTERNATIONAL LAW AND POLITICS [Vol. 56:765

The major legal critique on attributing the term “refu-

gees” to people displaced by climate change is that the term is
legally inappropriate because it should be reserved for those
fleeing persecution, as intended in the 1951 Convention. How-
ever, there is increased recognition that climate refugees should
actually fall within this narrowly constrained legal definition.48
Professor Jane McAdam provided an analysis of the use of Con-
vention terminology, stating that the “creation of a definition
inevitably leads to a testing of its boundaries, and establishes
the parameters for re-evaluating and re-defining what it should
be.”49 Though the UNHCR has historically been reluctant to
blur the boundaries between the 1951 Convention definition
of refugees and popular concepts of its understanding50, one
could argue that the current definition in international law has
become fixed in outdated observations and is in need of fur-
ther development so as to not leave vulnerable people behind
based on a legal category defined seventy years ago.51
Additionally, the claim that a unique legal meaning of
“refugee” exists is incorrect. The concept of protection in
international law has evolved in the past, which could illustrate
space for further development of its scope. The 1951 Conven-
tion’s refugee definition has been subject to expansion on at
least three occasions. The 1967 Protocol made a small technical
alteration by removing the geographic and temporal limitations
that had restricted refugee status to those who had fled follow-
ing events in Europe occurring before 1951. In 1969, the OAU
Convention expanded the definition of a refugee to include
those fleeing as a result of war, occupation, and other “events
seriously disturbing public order.”52 And in 1976, the Council
of Europe recognized that there were many people in Europe
who technically fell outside its scope but were nevertheless

2200A (XXI) of 16 December 1966 art. 1, 6; Kent & Behrman, supra note 2,
at 44–45.
48. Kent & Behrman, supra note 2, at 55.
49. Jane McAdam, Climate Change, Forced Migration, and International
Law (2012) 42.
50. EU Parliament Briefing, supra note 3, at 4.
51. Guy Goodwin-Gill quoted in Erika Feller, The Refugee Convention at 60:
still fit for purpose? Protection tools for protection needs, Refugee Protection and the
Role of Law: Conflicting Identities (Susan Kneebone et al., eds.) (2014) 63;
Kent & Behrman, supra note 2, at 43, 46.
52. OAU Convention, supra note 31, at art. 1(2); Cartagena Declaration, supra
note 36, at § III(3); Kent & Behrman, supra note 2, at 48.
2024] CLIMATE REFUGEES LEFT ADRIFT IN LEGAL IMPASSE 775

deserving of protection as “de facto refugees”.53 In each case,

these developments were a response to changing realities of
forced displacement. Even the UNHCR has acknowledged at
times that people who fall outside of the 1951 Convention can
still be described as “refugees”, as they did in their 1994 Note
on Protection for forcibly displaced persons.54
Based on this evolution, it is evident that there is room to
expand the definition of refugee, where appropriate, in the
context of people forced to leave their homes because of cli-
mate change. Nevertheless, as the realities of climate change
themselves unfold, the need for an ever-evolving definition is
clear.55 To remain attached to an outdated framing of what it
means to be a refugee means denying protection to many who
need it and contributing to the legal impasse on this issue.56
Certain practical alternative terms to “climate refugee”
have been put forward as approaches to defining this vulner-
able group, such as “climate-induced displacement” (for slow-
onset disasters) or “disaster-induced displacement” (for sudden
disasters).57 By contrast, Alexander Betts has coined the more
inclusive term of “survival migration”, which covers any per-
son forced to leave their home due to an existential threat.58
While this inclusive approach would protect wide classes of
people, it would not incentivize states to broadly extend sub-
stantive rights of movement and practical support. In an effort
to limit its scope, climate scientists today can identify hot-
spots where climate change is causing extreme weather events
or aggravating existing patterns, distinguishing these from

53. Council of Europe: Parliamentary Assembly, Recommendation 773 on the

Situation of De Facto Refugees 775 (Jan. 26, 1976).
54. U.N, High Commissioner for Refugees (UNHCR), Note on Interna-
tional Protection (Sept. 7, 1994), A/AC.96/830, ¶ 30, www.refworld.org/
docid/3f0a935f2.html; Kent & Behrman, supra note 2, at 49–50.
55. Simon Behrman, Legal subjectivity and the refugee, 26 International
Journal of Refugee Law 1 (2013).
56. Laura Westra, Environmental Justice and the Rights of Ecological
Refugees 7 (2009); Nina Hall, Displacement, Development, and Climate Change:
International Organizations Moving Beyond Their Mandates 63 (2016).
57. Walter Kälin, Conceptualising climate-induced displacement in Climate
Change and Displacement: Multidisciplinary Perspectives (Jane McAdam ed.,
2010); Nansen Initiative, supra note 38, at 7.
58. Alexander Betts, Survival migration: a new protection framework, 16
Global Governance 361, 362 (2010); Kent & Behrman, supra note 2, at 41-42.
776 INTERNATIONAL LAW AND POLITICS [Vol. 56:765

“normal geographic events”.59 Based on that analysis, it would

be possible to identify communities who will face acute effects
of climate change­ —such as island nations threatened with
submergence—and identify the vulnerable categories which
would be eligible for climate refugee status.60
Ultimately, it would be beneficial to define this group of
displaced peoples as “refugees” as opposed to “migrants”, since
the latter term suggests a connotation of voluntary migration
and lacks the suggestion of a threat of harm.61 One could argue
that words such as “displaced” and “migrant” do not adequately
capture the combination of involuntary elements and agency
that characterize the word “refugee”. Another advantage of
adopting the “climate refugee” label is that it recognizes both
the seriousness of their predicament and the deserving nature
of their claim to protection in a way that alternative terms do
not.62 Moreover, bringing these groups of people under the
United Nation’s umbrella term of “refugee” provides them the
necessary international legal protection, without the burden-
some introduction of a new legal instrument.
In summary, the legal concept of the refugee has been mal-
leable over time, often responding to geo-political changes that
have forced us to reconceptualize the notion of a refugee. Cli-
mate change debatably represents one of the major shifts in our
current geo-political reality.63 The conceptualization of a defini-
tion for people forced to move as a result of the effects of cli-
mate change as climate refugees would be effective in locating

59. Filippo Giorgi, Climate change hot-spots, 33 Geophysical Research

letters 8 (2006).
60. League of Nations, Arrangement Relating to the Issue of Identify Certificates
to Russian and Armenian Refugees (May 12, 1926), Treaty Series, vol. LXXXIX,
no. 2004; Kent & Behrman, supra note 2, at 67, 71.
61. U.N. Framework Convention on Climate Change (UNFCCC), Synthe-
sis of Relevant Information, Good Practices and Lessons Learned in Relation to Pillar
1: Enhancing Knowledge and Understanding, Technical Meeting, Action Area 6:
Migration, Displacement and Human Mobility 7 (July 29, 2016).
62. Frank Biermann and Ingrid Boas, Preparing for a warmer world: towards
a global governance system to protect climate refugees, 10 Global Environmental
Politics 60, 67 (2010).
63. Simon Behrman, Accidents, agency and asylum: constructing the refu-
gee subject, 25 Law and Critique 249 (2014); Kent & Behrman, supra note 2,
at 52-55.
2024] CLIMATE REFUGEES LEFT ADRIFT IN LEGAL IMPASSE 777

the problem, identifying those responsible, and opening up a

set of legitimate rights claims.64

IV. Conclusion: Is there potential to resolve

the international legal protection gap?

It has clearly been established, not least by the Nansen Initi-

ative, that cross-border migration for climate migrants is the key
legal gap when it comes to displacement of people due to cli-
mate change, and it needs to be addressed.65 Though the inter-
national community has seemingly woken up from its “legal
impasse” on tackling this issue66, evidenced by early political
will and cooperative action groups set up at climate conven-
tions67, the feasibility of a new international instrument which
could globally bind and impose the protections for a currently
undefined group of “climate refugees” is unclear.68
Given the scale, cross-disciplinary nature, and immediacy
of the problem, there is no one agency or partnership capa-
ble of providing a solution to the legal gap on its own.69 Simul-
taneously, states seem more eager to address root causes of
human displacement, rather than establishing a legal status for
climate displaced persons, in an attempt to prevent the mas-
sive climate migration waves forecast for 2050.70 Similarly, the
UNHCR sees no need for a new instrument, as it argues that
these vulnerable groups could, in theory, continue relying
on the protection of their national governments, in contrast
to “traditional refugees” fleeing persecution. The reality, how-
ever, is far more complex and therefore, the endorsement of a

64. Kent & Behrman, supra note 2, at 2; Behrman & Kent, Legal Impasse,
supra note 15.
65. Nansen Initiative, supra note 50, at 31; COC 2023 Report, supra note 12.
66. UNFCCC, Paris Agreement (Dec. 2015); UNHCR, New York Declaration
for Refugees and Migrants (Sept. 2016); Kent & Behrman, supra note 2, at 174;
Behrman & Kent, Legal Impasse, supra note 15.
67. InsuResilience Global Partnership for Climate and Disaster Risk Finance
and Insurance Solutions (2017) https://www.insuresilience.org/; UNHCR,
Population Movements Associated with the Search for Asylum and Refuge, ExCom/
WGSP/5 (Dec. 4, 1990); UNFCCC, COP24 Addresses Climate Change Migration
Ahead of U.N, Migration Pact Meeting in Marrakech (Dec. 6, 2018); EU Parliament
Briefing, supra note 3, at 9.
68. Kent & Behrman, supra note 2, at 161–62.
69. Id. at 147–48.
70. EU Parliament Briefing, supra note 3, at 10.
778 INTERNATIONAL LAW AND POLITICS [Vol. 56:765

binding convention aiming to offer legal protection to climate

displaced people, or the inclusion of “climate refugees” under
the 1951 Convention, should at least be considered.71
In tackling this issue, the international legal community
will find a useful starting point in the substantial amount of
law and policy proposals (i.e., existing conventions, guidelines,
practices, and regulations, such as the Nansen initiative), from
which an effective legal protection mechanism can potentially
be pieced together.72 Admittedly, even broadly recognized
instruments, such as the U.N. Guideline Principles on Internal
Displacement, have not been widely implemented in domes-
tic legal systems today.73 The current protection provided by
regional agreements leave millions of potential refugees help-
less, and non-binding agreements allow states to break prom-
ises without consequence. However, not all hope is lost, as many
currently displaced people can still invoke their rights based
on international human rights conventions, the U.N. princi-
ples, and several subsidiary regional conventions, if not being
granted refugee status under the 1951 Convention.74
It is likely that the legal community, rather than acting pro-
actively, will unfortunately only react when the problem takes
on even bigger proportions. At that time, existing legal regu-
lations and models will undoubtedly become of greater use.75
Though the ideal solution appears to be global in nature and
as comprehensive as possible, the promulgation of a global and
legally binding treaty that would define the status of and obli-
gations to climate refugees seems difficult to achieve.76 There-
fore, more flexible possibilities will have to be explored, such as
smaller frameworks, whether bilateral or regional, that may be
more practical to start tackling the issue. Ultimately, it is impera-
tive that governments and leaders start recognizing that climate
change displacement is an already occurring global challenge,
one which demands urgent answers to the victims of human
rights violations happening today.77

71. Id. at 4.
72. Kent & Behrman, supra note 2, at 163; Nansen Initiative, supra note 38,
at 7.
73. Nansen Initiative, supra note 38, at 41.
74. EU Parliament Briefing, supra note 3, at 7.
75. Kent & Behrman, supra note 2, at 163–64.
76. Bergeron, Climate Refugees, supra note 7.
77. EU Parliament Briefing, supra note 3, at 11.