Reconsidering the Status and Rights of Climate Refugees Under International International Journal of Law and Society Law Vol 6 Issue(2) No168-172 2023

Reconsidering the Status and Rights of Climate Refugees Under International Law

Kujo Elias McDave1, Palmer Prince Dagadu2, *

1Faculty of Law, Pentecost University, Accra, Ghana

2School of Law, Xiamen University, Xiamen, China

Email address:

*Corresponding author

To cite this article:

Kujo Elias McDave, Palmer Prince Dagadu. Reconsidering the Status and Rights of Climate Refugees Under International Law. International

Journal of Law and Society. Vol. 6, No. 2, 2023, pp. 168-172. doi: 10.11648/j.ijls.20230602.18

Received: May 7, 2023; Accepted: June 15, 2023; Published: June 27, 2023

Abstract: In recent years, much ink has been spilled over legal and policy initiatives concerning climate change. While the

argument about the most responsive, acceptable, and equitable way to manage our changing environment continues, a secondary

concern is emerging. As the effects of our changing climate become more widely and deeply felt, climate change is increasingly

being blamed for the relocation of individuals, communities, and, in some cases, entire nations. However, the struggle of those

been displaced otherwise known as climate refugees goes mostly unnoticed and unsupported by the international community and

poses serious legal difficulties for international law. The causing and escalating of mass migrations of people as a result of both

short-term and long-term climatic disasters are mostly lacking in the mainstream public discourse. The issue of how to regulate

and protect climate refugees is complex, and the answer will rely on how well each state can adapt to the changing environment.

Studies predict that as many as 250 million people would have been displaced by the year 2050 either internally or across the

borders because of climate change and this needs an utmost and urgent solution. However, it must be noted that the solution to

this problem lies not only in terms of the determination to solve this issue but also a resolute to amend the legal regime underlying

the challenge. Current legal frameworks are ambiguous as to whether and to what extent climate refugees should be protected

under international law. The historic ruling of the United Nation Human Rights Committee in Ioane Teitiota v. New Zealand

further increased academic interest in the matter and the increasing numbers climate refugees underscore the importance of this

topic. The paper highlights the plight of climate refugees and suggests how the current protection gap in international law might

be remedied. It proposes a creation of an international refugee protection framework that includes the recognition and protections

for climate refugees. The proposed framework should create obligations to deal with both prevention and remediation of the

climate refugee problem by establishing guarantees of human rights protections and humanitarian aid for climate refugees. It

should also spread the burden of fulfilling those guarantees across the home state, host state, and international community and

should also form institutions to implement the provisions within this framework.

Keywords: Climate Refugees, Human Rights, Climate Change, Legal Protection, International Law

1. Introduction

For the global community, the influx of climate refugees

poses a significant threat. Recognition and coverage of the

role of climate change in causing and escalating mass

migrations of people as a result of both short-term and

long-term climatic disasters are mostly lacking in the

mainstream public discourse. Although estimates of the

magnitude of migration caused by climate change vary greatly,

the numbers are still increasing. Since 2008, weather-related

calamities like floods, storms, wildfires, and extremely high

temperatures have forced an average of 21.5 million people to

flee their homes per year, according to the United Nations

High Commissioner for Refugees (UNHCR). According to

projections from the international think tank Institute of

Economics and Peace (IEP), 1.2 billion people may be

displaced worldwide by the year 2050 as a result of climate

change. These numbers are likely to rise sharply in the ensuing

decades. In a similar line, the Internal Displacement

169 Kujo Elias McDave and Palmer Prince Dagadu: Reconsidering the Status and Rights of Climate Refugees Under

International Law

Monitoring Centre (IDMC) claimed that from 2008 to 2018,

natural disasters caused the displacement of about 253.7

million people, three to ten times more than conflicts and wars

worldwide [1].

Despite the fact that a number of proposals have been put

forth to address the issue of climate refugees, it is

anticipated that it will be challenging to extend the 1951

Refugee Convention's protection to include climate

refugees since it would diminish the value of the current

refugee protection because climate refugees do not flee

state persecution and do not meet the criteria outlined in

Article 1 of the Refugee Convention [2]. The key

distinction between a regular refugee and a climate refugee

is that under international law, the latter is only entitled to

the fundamental rights guaranteed to all people. Due to the

fact that they are not refugees [3], they are ineligible to

apply for asylum under international law.

The phrase climate refugee, according to critics, is too

vague to accurately describe or measure migration caused by

climate change [4]. Some critics, including Bierman and Boas,

used the term climate refugee to refer to those who have been

forced to leave their homes due to changes in their natural

environment brought on by climate change. These changes

can be the result of sea level rise, extreme weather events, or a

lack of water and food. However, these critics argued for the

introduction of a sui generis system, distinct from the

preexisting legal order. In particular, they suggested that

climate refugees should not be treated differently based on

whether or not they have crossed a country's border. [5].

Many have argued that the lack of a universally accepted

definition of climate refugees prevents the international

coordination and collaboration needed to put in place the

required legal and material infrastructures to address the

displacement challenges [6].

The concept of climate refugees is not without merit. The

term refugee draws in part on the language of rights, which is

typically associated with binding legal authority. Forcibly

returning (refoulement) refugees to a country where they risk

danger or discriminating between categories of refugees is

illegal under international law, as is providing sanctuary to

those in need. As a result, there are real-world repercussions to

being labeled a refugee, such as the need of host governments to

provide for and protect them in a way that goes beyond mere

hospitality. [7] As a result of not citing purposeful human

aggression as a motive for their escape, the 1951 Geneva

Convention of refugees does not currently provide provisions

for climate refugees. If the term climate refugee had legal

standing, it could be claimed that it carried additional power and

relevance. The reality, however, is rather different. In fact, the

legal weight of the current category of refugees has been

emphasized as a positive aspect of the phrase. Its legitimacy has

obvious, real-world consequences for those who can lay claim

to it [7]. Nevertheless, the concept of a climate refugee remains

without legal standing, and the baggage of the term refugee

itself is extensive.

2. Legal Protection Dilemma for Climate

Refugees

However, there is a lack of clarity and resources about the

legal rights and standing of those who relocated due to

disasters, climate change, or environmental degradation.

Refugees are defined by international law as those who are

outside of their home country due to a well-founded fear of

persecution. Most persons do not meet the international legal

definition of a refugee because they do not leave their home

country or because they are fleeing environmental harm rather

than persecution [8]. As a result, the 1951 Refugee

Convention and Protocol do not provide any further

protections for them. There is a lack of protection for people

who relocate due to environmental or climatic concerns

because neither a clear nor approved description for such

people exists, nor does an international treaty.

The 1951 Convention Relating to the Status of Refugees

was analyzed to show its limitations in the context of climate

refugees. This convention codifies the customary international

law principle of non-refoulement by imposing an obligation

on state parties to not return refugees to a territory where there

is a risk of persecution. In fact, governments continue to rely

on the definition established in article 1A (2) of the Refugee's

Status Convention, despite the fact that the causes of

displacement have evolved dramatically over time. The

obligation of non-refoulement was established by the United

Nations Convention of 1951, and it states that no country shall

return any individual who has a well-founded fear of

persecution on account of their race, religion, nationality,

membership in a particular social group, or political opinion

[9]. Article 3 of the Convention protects individuals against

discrimination by requiring that states apply its protections

without regard to a person's race, religion, or national origin

[10]. Article 31 guarantees that nations will not impose

penalties on refugees for entering or being in the country

without permission if they are fleeing a country where they

fear for their safety or freedom.

In accordance with article 33, the principle of

non-refoulement states that no nation "shall expatriate or

return a refugee in any manner whatsoever to the frontiers of

territories where his life or freedom would be threatened on

account of his race, religion, nationality, membership in a

particular social group, or political opinion. However, it is

impossible for individuals or communities to articulate a

well-founded fear of persecution if they are forced to leave

their country of origin due to climate-related events like

famine, drought, or flooding, and so they may not meet the

requirements stipulated in Article 1 of the 1951 Convention's

definition of a refugee. [11]. The court in Wellington, for

instance, has shown the challenges of applying the present

refugee categories to climate refugees through the landmark

case Ioane Teitiota v. New Zealand.

In light of this, the UNHCR, which is responsible for

upholding the Refugee Convention of 1951 and the Protocol

of 1967, does not use the phrase climate refugees to describe

anyone affected by environmental disasters. People displaced

International Journal of Law and Society 2023; 6(2): 168-172 170

due to natural catastrophes and climate change are what it

actually talks about [12]. A person must be fleeing persecution

in order to qualify for refugee status under the 1951 Refugee

Convention. Such individuals or groups were required to be

protected from being sent back to the territory's border if

doing so would endanger their lives or violate their human

rights. The UNHCR Handbook on Procedures and Criteria for

Determining Refugee Status, however, states that there is no

universally accepted definition of persecution [12]. Harms as

varied as rape, beatings, attempted murder, and death threats

are all part of the spectrum of abuses that make up persecution.

Concerning those who have been forced to flee their homes

as a result of climate change, the question of whether or not

discrimination falls within the category of persecution is of the

utmost importance. In the UNHCR Handbook, it is written

that where measures of discrimination are, in themselves, not

of a serious character, they may nevertheless give rise to a

reasonable fear of persecution if they produce, in the mind of

the person concerned, a feeling of apprehension and insecurity

as regards his future existence. [13]. The actions and inactions

of the government regarding the climate frequently have

varying effects on different sub-groups of the country and are

classic examples of discrimination. This type of

discrimination may rise to the level of persecution if it means

that members of those groups or sub-groups are reasonably

fearful for their future existence. The most important factor in

determining whether or not such worries amount to

persecution is determining whether or not the actions or

inactions of the government were done intentionally.

According to the statements made by Professor Gaim

Kibraeb, the only time environmentally induced persons may

be regarded as refugees is when the state uses the environment

as an instrument of political oppression. This stipulation is

necessary due to the fact that the concept of persecution is

predicated on the failure of the state to provide adequate

protection [14].

3. Climate Refugees Framework:

An Alternative Paradigm for

Recognition of Climate Refugees

This paper proposed a new framework that would provide

asylum to those who had been displaced because of climate

change. A new Convention might operate as a stand-alone

treaty or as an addendum to the Refugee Convention or the

United Nations Framework Convention on Climate Change.

Docherty and Giannini, however, disagree, arguing that the

key qualities of a treaty controlling climate refugees do not

align with the object and purpose of either the Refugee

Convention or the UNFCCC. Therefore, an autonomous treaty

is recommended by Docherty and Giannini [15]. Hodginson et

al., who contend that such a Convention should include

internal displacement in addition to trans-border migration,

share the same viewpoint [16].

However, some academics disagreed with the notion of a

new treaty. McAdam offers three justifications for why a new

treaty would not be the best way to address climate-related

migration [17]. Firstly, slow-onset climate processes that do

not mesh with the current framework of refugee law pose a

threat to the Pacific Islands in the case of sea level rise. The

precise moment at which the sluggish procedure equates to

meeting the requirement would be crucial because refugee law

calls for a certain level of harm would be experienced.

Secondly, it would be impossible to distinguish between the

conceptual problems discussed earlier, i.e., between people

who migrate forcibly owing to climate change and people who

do so voluntarily due to other push-and-pull causes. Thus,

McAdam argued that it would be unclear to address one of the

causal factors in a multicausal situation. [18]. Thirdly, and

perhaps most significantly, McAdam mentions the political

challenges that a new treaty's drafting faces [17]. The

argument is comparable to the one that Biermann and Boas

presented regarding the revision of the Refugee Convention,

and it is summarized by McAdam as follows: states currently

lack the political will to negotiate a new instrument requiring

them to provide international protection to additional groups

of people [19].

4. Guiding Principles for the Climate

Refugees Framework

4.1. The Early and Sustainable Response Principle

A cynic would ponder how many people need to die before

the rest of the world wakes up; whenever anything like this

happens, hundreds of thousands or millions of people are

forced to from their homes, and many of them do not find

permanent housing [20]. On the other hand, it is unlikely that

widespread photos of a storm surge impacting a little island

that may be considered paradisiacal will compel the world

community to wake up and accept the reality of climate

refugees.

In order to reduce the number of people forced to flee their

homes as a result of climate change, the international

community ought to take advantage of the fact that climate

migrations are predictable and quickly come to an agreement

on how to treat climate refugees. On the other hand, in contrast

to applications for political asylum, climate refugees can be

predicted well in advance. In-situ adaptation for the short term

should not be sought out until after due consideration has been

given to a longer-term convention [20]. The danger is that

exaggerated claims of in-place adaptation serve as a

justification for the international community to forgo

examining the need to draft a new treaty governing the status

and rights of climate refugees. Not only should a good

convention that controls the climate refugee situation be

established early, it should also be durable enough to avert any

more tragedy.

Given the differences in their circumstances, substantive

equality of rights for climate refugees may call for specific

forms of action. Those who have been forced to from their

homes due to the effects of climate change should, from the

very beginning, be considered and treated as permanent

171 Kujo Elias McDave and Palmer Prince Dagadu: Reconsidering the Status and Rights of Climate Refugees Under

International Law

immigrants and given the same rights as citizens [21].

To ensure the long-term viability of resettlement programs,

refugees fleeing the effects of climate change should be

accorded a status that is both stable and permanent, which will

give them access to various forms of protection. In point of

fact, if climate change refugees are going to spend the

remainder of their lives in the country in which they have

taken sanctuary, there is no reason why that government

should not grant them citizenship [21]. Naturalization is the

method that would be most effective in ensuring that climate

change refugees are not exploited once they have relocated

and in ensuring that political justice is maintained. However,

the fact that climate change victims are granted automatic

citizenship is a contentious issue.

4.2. The Principle of Safeguarding Individual and Collective

Rights

The agreement needs to leave no room for doubt on the

necessity of the respect for human rights being an inherent

component of any policy response to the problem of climate

refugees [21]. People do not live-in isolation; rather,

membership in communities fulfills a fundamental

requirement for humans on the economic, social, and political

fronts. In light of this, one might reason that if certain

individual moral rights exist [22].

A convention that addresses climate refugees has the

challenging task of striking a balance between the protection

of the collective identity of displaced groups and the

fundamental rights of each individual. This may be a very

challenging assignment. Biermann and Boas proposed that a

climate refugees’ regime should be adapted not to the

requirements of individually persecuted people as the existing

UN refugee regime is, but rather to the needs of entire groups

of people, such as the populations of villages, towns,

provinces, or even entire states. [22]. This is in contrast to the

current UN refugee regime, which is suited to the needs of

individuals who have been persecuted individually. Giving

climate refugees sovereignty over their new home, whether by

cession or lease of land, would be an intriguing alternative

because it would allow them to fully preserve their sense of

national identity.

4.3. The Principle of a Global Approach of Climate

Migration

The third guiding approach is that the adopted convention

should have a global scope, both in terms of its physical

location and the subject matter it addresses. Because the major

greenhouse gas emitters are frequently located in regions of

the world that are geographically removed from nations that

are directly impacted by climate change and because

instability in one part of the world can spread to other areas of

the globe, addressing climate change requires a global

approach. [22]. Adopting a new framework on climate

refugees is a requirement for both equity and efficiency. It is a

requirement for equity because it ensures that those states

responsible for climate change pay for its consequences.

However, it is also a requirement for efficiency because it

includes both developed countries of the global North as well

as affected countries, most of which are located in the global

South. Because of this, it is clear that the convention will not

be able to totally sidestep the problem of internal

displacements caused by climate change. Only granting

asylum to those who are unable to be protected in their home

country may, under some conditions, offer an incentive for

less-than-ideal domestic policies that do not take adaptive

steps with the intention of getting rid of vulnerable

populations [23]. A truly global approach to the problem of

climate refugees would need the various parties involved to

strike a balance between the costs and advantages of

international relocation and adaptation in situ. In addition, the

adoption of a new framework for climate refugees ought to be

synchronized with the implementation of initiatives to reduce

the effects of climate change. This may pave the way for

national contributions to an international fund that is indexed

on the level of emissions of greenhouse gasses and/or on the

reduction of these emissions. Depending on how things play

out, this may open the door to both of these possibilities. [24].

5. Conclusion

Over the next century, millions more people will be forced

to leave their homes due to climate change. Small island states

risk being engulfed by rising sea levels. Large areas of

currently inhabited land will become uninhabitable as a result

of desertification. More powerful storms will force people to

temporarily move to safer areas, likely across international

borders. Although the majority of scientists concur those

human activities all over the world contribute to climate

change, it is an environmental phenomenon. The world

community should bear responsibility for reducing the climate

refugee catastrophe because the nature of climate change is

global and humans contributed to it. Before the situation

reaches a more serious crisis level, states and international

organizations should devise an innovative, global, and

interdisciplinary solution that can be put into action.

It may be difficult to create a new convention, however

there are solid grounds for optimism that states will support

the new convention, as well as civil society and impacted

communities. Both the host and home states as well as the

larger international community would have reasons to pursue

such an autonomous tool. Assistance would be provided to

states immediately affected by a scenario of climate refugees

to deal with it. A climate refugee convention would encourage

home governments to sign on since it offers support for both

corrective and preventive actions when there are identifiable

people at danger. Averting refugee flows and maintaining

communities would help to better protect the cultural and, in

some circumstances, national integrity of the home states.

The establishment of such a convention would be

advantageous to the rest of the world community for a variety

of reasons. Some states may be motivated by humanitarian

needs. Given the close relationship between emissions

reductions and economic growth, states may be more willing

International Journal of Law and Society 2023; 6(2): 168-172 172

to agree on humanitarian aid than emission reductions. Some

states have defended their lack of action on emission

reductions by expressing concern over the economic expenses

of dealing with emissions in the future and arguing over who

is to blame for the historical consequences of industrialization

and emissions. Therefore, there have been both historical and

forward-looking obstacles to obtaining an emissions accord. A

refugee regime would be more humanitarian in focus and

would not involve the same types of trade-offs about future

economic decisions related to emissions.

The simplest option to get beyond the restrictive

requirements of current legal systems is to create a climate

refugee convention that is distinct and independent from the

existing refugee and climate conventions, nations would be

motivated to accept such a new instrument. The proposed

agreement would probably bring the growing issue of climate

refugees to the attention of the public, and it would give room

for multidisciplinary solutions that use the legislation

pertaining to human rights, humanitarianism, and the

environment to assist people in need.

The international community should reconsider climate

refugees' status and legal rights in light of the issues with how

they have been warped and distorted by exclusionary and

divisive policies and language.

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