Is It Still Worth Arguing Over the Concept of “Climate Refugee”?

Refugee lawyers have long contested the popular use of the term “climate refugee.” What could seem like legal nitpicking has the merit of highlighting major differences in legal categories. It also reveals international law’s current inability to offer adequate systematic solutions to forced cross-border displacement caused by climate change. Nonetheless, some recent developments give a glimpse into possible ways around the traditional obstacles and reason for hope.

The term “climate refugee” is often thrown around in media coverage of climate change-related human mobility, much to the frustration of refugee lawyers, who have argued against its use for decades. Yet, the term’s popularity seems inevitable, for two main reasons: it appeals to the public’s imagination by echoing contemporary debates on the protection of refugees, and in doing so, it makes plain the critical fact—still too often underestimated—that climate change does cause human mobility.

That being said, the expression arguably oversimplifies a complex and multifaceted phenomenon that encompasses a range of different scenarios. Most notably, climate change can cause either voluntary or forced, internal or cross-border mobility. The scope of the phenomenon also remains difficult to predict; so much so that estimates suggest it could impact anywhere from 25 million to 2.8 billion people by 2050. More importantly, far from an instance of lawyers’ nitpicking, the terminological controversy highlights the existence of major legal differences that have a direct impact on the individuals affected by climate mobility.

Notably, even though the adverse effects of climate change are and will continue to primarily cause internal mobility, cross-border mobility raises a distinct set of legal challenges and concerns. While individuals are presumed to benefit from the protection and assistance of their state of nationality or residence in the first scenario, in the second, they often find themselves in the hands of states with whom they have no pre-existing legal ties.

Moreover, while progress has been made regarding internal displacement in the past decades, for cross-border mobility, especially forced displacement, the picture remains grim. This situation is exacerbated by the fact that the 1951 Geneva Convention’s definition of a refugee—the main international legal mechanism for the protection of victims of forced displacement— excludes people displaced by environmental factors from refugee status, leaving them in a legal grey area. This omission has been the cause of international lawyers’ continued rejection of the use of the term “climate refugee.” More than a mere blind spot, the situation suggests that international law may be failing those most affected by climate change.

As concerns for the impact of climate change grow, partly due to its increasingly visible effects on the lives of people worldwide, governments face growing pressure to implement decisive measures despite existing legal limitations. In this context, some recent developments offer glimpses into possible strategies to navigate some of the obstacles.

Can the Limits of Refugee Law Be Overcome?

Current refugee law frameworks, whether at the international, regional, or domestic levels, have often been viewed as the main barriers. This perception stems from the fact that the 1951 Geneva Convention on the Status of a Refugee delineates only a narrow scope of protection, requiring a clear risk of persecution. Consequently, it excludes harm resulting from natural phenomena. Some have, therefore, suggested updating the Convention to address these limitations.

Considered somewhat of a fringe argument, it recently received the high-profile endorsement of the first UN Special Rapporteur on climate change, the environmental law scholar Ian Fry. Despite its bold recommendations, the 2023 report received limited attention and faced skepticism from refugee lawyers. One reason is the perception that, while appealing in theory, such an endeavor is not only unlikely to succeed, but also risks backfiring.

Alternatively, it has been claimed that, even without changes to the treaties, current provisions could merely receive a broader interpretation. However, in the current political climate, any effort to reopen the debate on the Convention’s refugee definition could end up weakening refugee protection altogether. This concern is reflected in the caution displayed in UNHCR’s 2020 guidance document. Although the document indicates that states could extend refugee protection to individuals fleeing the adverse effects of climate change based on existing definitions, it declines to endorse an updated broadened interpretation of the treaty’s provisions.

Other recent developments in refugee law have similarly shied away from addressing climate displacement as such. The 2018 UN Global Compact on Refugees, for instance, made only tame references to climate change, barely acknowledging its “interaction” with drivers of displacement. Given the significant obstacles involved, the policy conversation on cross-border climate displacement needs to look beyond refugee law.

Modest Developments in Human Rights Law and the Impact of Climate Litigation

Human rights law—broader in scope and benefitting from stronger enforcement mechanisms—could seem like an ideal gap-filler. In this area, litigation efforts in recent years have indeed allowed for some modest developments that could herald further advances in the future.

One significant breakthrough was made in 2020 with a decision of the UN Human Rights Committee in the case of Teitiota v. New Zealand, which, while ultimately rejecting the applicant’s claim, introduced a possibly groundbreaking principle. It suggested that the prohibition of refoulement could, in principle, extend to circumstances where an individual’s right to life was threatened by adverse effects of climate change. In other words, individuals displaced by climate change could be protected against deportation to their countries of origin and be eligible for subsidiary protection abroad. A similar acknowledgment was made by the Italian Supreme Court of Cassation in 2021.

With the rise in climate change litigation, other supra-national cases, even those not focused on migration, could also potentially influence the law on forced displacement. Notably, in 2023, Chile and Colombia requested a comprehensive advisory opinion from the Inter-American Court of Human Rights to clarify state obligations in the face of climate change. The approach echoes a similar request made to the International Court of Justice by the UN General Assembly that is still pending. Nevertheless, while some of these efforts could lead to positive developments, it would be naïve to count on them to singlehandedly unlock the situation.

Reason for Hope: Recent Promising Developments

Ultimately, rather than groundbreaking universal changes, more limited and fragmented initiatives, at the domestic, regional, or even bilateral level, may prove more promising in delivering adequate legal avenues and inspiring change elsewhere.

One example includes Argentina’s 2022 decision to extend emergency humanitarian visas to individuals affected by “sudden-onset socio-natural disasters” in neighboring countries, an initiative that mirrored a previously experimented measure in New Zealand in 2017.

Another interesting recent policy push comes, surprisingly, from the United States. Following a groundbreaking 2021 report by the Biden administration, a federal bill introduced in 2023, known as the Climate Displaced Persons Act, proposes that the country admit 100,000 “climate-displaced persons” annually through a special scheme distinct from refugee status or temporary protection. Though the bill’s chance to be passed into law is anything but certain, if it did, it would certainly set a prominent precedent that could encourage other nations to follow suit.

2023 also saw a notable bilateral development, from yet another unusual suspect, Australia, more famous for its appalling treatment of asylum seekers. In a groundbreaking deal, the country’s authorities agreed to create a unique pathway to permanent residency for the citizens of the Pacific island of Tuvalu threatened by rising sea levels. Limited to 280 people per year, the scheme is far from a long-term solution. It has also been criticized for its cynical and neo-colonial undertones, in part due to the far-reaching security-oriented tradeoffs Australia imposed in return. Still, the agreement represents an important development nonetheless and sets an interesting precedent that could one day be extended, or replicated elsewhere.

At a regional level, African States, having previously pioneered climate mobility efforts with the 2009 Kampala Convention on Internally Displaced Persons, reached a milestone in 2022. They agreed on a declaration to address climate-induced migration, both internally and across borders. Signed by 48 of the continent’s 54 states, this declaration is the most widely endorsed commitment of its kind to date. However, as the declaration remained primarily political, its impact in practice remains to be seen. Because of the pressing challenge posed by climate change in Africa, some have proposed an amendment to the 1969 Organization of African Unity (OAU) Refugee Convention to include individuals fleeing the adverse effects of climate change. While surely more likely than an update to the 1951 Geneva Convention, such a step is not currently on the agenda.

Current Frameworks Remain Critically Insufficient to Face Large-Scale Climate Mobility

All in all, the current legal frameworks are still vastly inadequate to face the present and future challenges resulting from climate-induced human mobility, particularly that of large-scale forced displacement. While recent efforts represent baby steps in the right direction, one cannot help but feel that the world is still dangerously unprepared.

Yet, despite existing treaties’ limitations, because climate change is a global phenomenon, international law and international cooperation will have an essential role to play. In this context, it may therefore be worth continuing to challenge the use of the term “climate refugees,” if only to highlight the pressing need for new legal pathways.

This blog post is partly based on a longer paper forthcoming in the Ecology Law Quarterly.

Cyprien Fluzin is a PhD Researcher at the Geneva Graduate Institute of International and Development Studies, Switzerland, and an Adjunct Lecturer at Sciences Po and PSL University (Dauphine) in Paris, France.