Image description: Protesters at a march with banners reading ‘stop climate change’.

Climate change is an increasingly grim and urgent problem with profound implications for refugee and asylum international law. Most of the increase in global temperature has occurred since 1975 and at a rapid rate of approximately 17 degree Celsius or 32 degrees Fahrenheit per decade. Unsurprisingly, over 98% of the 30.7 million global disaster displacements were weather-related in 2020, and, by 2050, approximately 200 million people will be forced to migrate due to climate change. Still, international law has not yet risen up to the challenge. Although international cooperation has become increasingly prevalent in international policies such as United Nations’ (UN) agreements, including the Paris Agreement (2016), international law still lacks official guidelines on climate induced migration.

The current state of international climate migration law

The judicial development of international climate change migration law is still incipient and existing precedents fail to provide climate change refugees and asylum seekers with legal protections on an equal basis to conventionally defined refugees per the UN High Commissioner for Refugees’ (UNHCR) 1951 Convention. Humanitarian visas and refugee statuses, for instance, are not specifically designed for victims of forced climate displacement, thus leading to legal ambiguities.

This was the case in the UN Human Rights Committee’s Teitiota vs. New Zealand. The claimant argued that he was forced to migrate from Kiribati to New Zealand to escape life-threatening climate change, which resulted in cascading effects such as a lack of land and fresh water as well as violence due to increased competition for resources. The Committee denied the request due to lack of proof of his inability to remain at his place of origin, refusing to recognise that his right to life was truly threatened on the basis of existing evidence. As a result, the Committee failed to acknowledge that climate refugees, who may be subject to violence, for example, when attempting to claim food and being denied access to clean water, are worthy of international legal protections equivalent to those afforded to ethnic minorities encountering the very same risks.

The way forward

The standards according to which international courts may assess whether an immigrant’s context qualifies as an indication of climate displacement for refugee purposes remain unclear. This has given rise to severe deficiencies in climate change refugee law and policy. The UN could better tackle the climate migration crisis by establishing a fundamental rule of law regarding what a climate refugee is through data. For example, it could establish objective thresholds protecting refugee applicants living in areas with a substantially faster rate of temperature increase or from countries experiencing food rationing or a high decrease of Gross Domestic Product due to climate change.

The UN has started to acknowledge the importance of recognising climate-induced migration. In 2005, Janos Bogardi, the then Director of the UN University Institute for Environment and Human Security, urged that “there are well-founded fears that the number of people fleeing untenable environmental conditions may grow exponentially as the world experiences the effects of climate change and other phenomena. This new category of ‘refugee’ needs to find a place in international agreements”. Still, the landmark case that currently holds the place as precedent in international climate change refugee law and policy, Teitiota vs. New Zealand, showed how climate change is not yet taken as seriously as conventional displacement causes such as religious prosecution.

While it is likely that climate change refugee cases will add to the same pattern of interpretation, there is still hope in reshaping international law, for instance by broadening the UNHCR 1951 Convention’s definition of a refugee to include those displaced due to climate change for visa purposes. In fact, this effort may be spearheaded by Dr. Ian Fry, as he will soon be filling the newly created post of UN Special Rapporteur on human rights related to climate change. In this capacity, he will study how climate change infringes on human rights and propose preventive UN policies. Earlier this year, Dr. Fry stated that “rights to water, education, housing, etc. are theoretically afforded to refugees. [Climate change refugees] don’t meet that definition, and therefore they’re not afforded that right. And that’s certainly something I’ll be looking at – do we need to ascribe legal protection to people displaced by climate change?”