Climate Refugees and International Law

1. Introduction

The phenomenon commonly described as Climate Refugees has emerged as one of the most pressing yet legally unsettled challenges in contemporary public international law. Climate change is no longer a prospective or abstract risk; it is already shaping patterns of human mobility through sea-level rise, desertification, extreme weather events, and the gradual erosion of livelihoods. Millions of people are being displaced each year by climate-related factors, and a growing number are crossing international borders in search of safety, stability, and survival. Despite the scale and urgency of this reality, international law lacks a coherent and binding framework that directly addresses the legal status and protection of individuals displaced across borders due to climate change.

The term “Climate Refugees” occupies a paradoxical position. It is widely used in academic literature, policy debates, and public discourse because it captures the gravity of forced displacement linked to environmental harm. At the same time, it has no formal recognition under international refugee law. The 1951 Convention relating to the Status of Refugees and its 1967 Protocol were drafted in a post-war context and are anchored in persecution based on specific grounds, not environmental or climatic factors. This conceptual mismatch has generated persistent legal uncertainty, forcing courts, administrative bodies, and international institutions to address climate-related displacement through indirect and often fragmented legal pathways.

This article examines Climate Refugees as a legal problem rather than a rhetorical label. It proceeds from the premise that climate-induced displacement exposes structural limits in existing protection regimes, including refugee law, international human rights law, and complementary protection mechanisms. While climate change is increasingly acknowledged as a driver of displacement in authoritative international reports, legal protection remains largely contingent on doctrinal adaptation rather than explicit entitlement. Individuals displaced by slow-onset environmental degradation often fall outside established legal categories, even when return would expose them to life-threatening conditions or irreversible harm.

The analysis adopts a doctrinal and practice-oriented approach. It situates climate-related displacement within the broader architecture of public international law, examining how existing norms are interpreted, stretched, or resisted in response to new forms of harm. Particular attention is paid to the interaction between refugee law and human rights law, especially the evolving scope of non-refoulement obligations in cases involving environmental risk. The article also addresses the role of international climate law, institutional mandates, and emerging debates on responsibility and cooperation.

By focusing on legal structure, interpretive practice, and concrete examples, this study aims to provide a clear and rigorous account of how international law currently responds to Climate Refugees, where it fails, and which legal avenues offer the most realistic prospects for protection in the absence of a dedicated global regime.

2. Climate-related displacement as a legal phenomenon

2.1 Forms of climate-induced human mobility

Climate-related displacement takes multiple forms, each raising distinct legal questions under international law. A first category concerns sudden-onset disasters, such as cyclones, floods, wildfires, and storm surges. These events tend to produce rapid, large-scale displacement, often temporary in nature, and predominantly within national borders. International legal responses to such displacement have historically relied on emergency assistance, disaster relief, and, in limited cross-border situations, temporary protection or humanitarian admission rather than status-based international protection (UNHCR, 2023).

A second category involves slow-onset environmental degradation, including sea-level rise, desertification, salinisation of freshwater sources, coastal erosion, and prolonged drought. These processes unfold over years or decades, progressively undermining livelihoods, housing, food security, and access to essential resources. Slow-onset displacement poses the most acute challenge for legal protection frameworks because movement is rarely sudden or clearly compelled by a single identifiable event. Instead, individuals often migrate incrementally, making it difficult to characterise their movement as “forced” under traditional legal standards (McAdam, 2012).

A third category concerns irreversible territorial loss, most prominently affecting low-lying island States and coastal regions. In such cases, entire communities may face the permanent loss of habitable territory, raising unprecedented legal questions related to nationality, state continuity, and long-term protection abroad. Existing international law offers no explicit framework for populations displaced by the disappearance or uninhabitability of State territory, exposing a structural gap in protection for those affected (Rayfuse, 2010).

Slow-onset processes raise the hardest legal problems because they blur the line between voluntary migration and forced displacement. Legal protection regimes are built around immediacy, coercion, and identifiable threats. Gradual environmental decline does not easily satisfy these criteria, even when remaining in place would eventually result in serious harm or loss of life. As a result, individuals displaced by slow-onset climate impacts are frequently excluded from international protection despite facing conditions incompatible with human dignity.

2.2 Causation and multi-factor displacement

One of the central doctrinal challenges in addressing Climate Refugees lies in establishing climate change as a legally relevant cause of displacement. International protection regimes typically require a demonstrable nexus between harm and a specific legal trigger, such as persecution, armed conflict, or serious human rights violations. Climate change, however, rarely operates as a sole or direct cause. Its effects are diffuse, cumulative, and mediated through social, economic, and political structures (IPCC, 2022).

From a legal perspective, isolating climate change as the decisive cause of displacement is often impossible. Environmental stress interacts with poverty, weak governance, population pressure, and existing patterns of inequality. Courts and decision-makers therefore struggle to distinguish climate-induced displacement from broader forms of economic or social migration, even when environmental degradation is a decisive factor in the breakdown of viable living conditions (Scott, 2020).

Climate change is better understood as a threat multiplier rather than a standalone driver. It intensifies resource scarcity, exacerbates competition over land and water, and places additional strain on fragile institutions. In conflict-affected or marginalised regions, climate impacts may aggravate violence, discrimination, or state neglect, indirectly contributing to conditions that force people to flee (Adger et al., 2014). From a doctrinal standpoint, this indirect causation complicates protection claims, as legal tests are often ill-equipped to accommodate layered and interacting causes of harm.

The difficulty of causal attribution has significant legal consequences. Protection decisions tend to prioritise immediate, identifiable risks over structural and long-term threats. As a result, individuals displaced by climate-related processes frequently fail to meet existing legal thresholds, even when climate change plays a central role in rendering return unsafe or unsustainable.

2.3 Internal versus cross-border displacement

Most climate-related displacement occurs within national borders. Individuals and communities affected by environmental degradation or disasters typically relocate to other regions of the same State, often moving from rural to urban areas. This predominance of internal displacement has major legal implications, as international refugee and asylum regimes are triggered only once a person crosses an international border (UNHCR, 2023).

Internal displacement constrains the operation of international protection mechanisms by placing primary responsibility on the State of origin. International law governing internally displaced persons remains largely non-binding, relying on soft-law instruments and general human rights obligations. Where States lack capacity, political will, or territorial control, internally displaced persons may face prolonged insecurity without access to effective remedies.

Internal displacement may evolve into cross-border movement when domestic coping mechanisms collapse. Repeated displacement, failure of planned relocation, loss of land rights, or the cumulative effects of environmental decline can eventually compel individuals to seek safety abroad. In such cases, prior internal displacement is often treated as evidence that no viable internal protection alternative exists, a factor that becomes legally relevant in asylum and non-refoulement assessments (Kälin and Schrepfer, 2012).

The transition from internal to cross-border displacement highlights the temporal dimension of climate-related mobility. Legal frameworks that focus narrowly on the moment of border crossing risk, overlooking the prolonged processes that lead individuals to leave their country of origin. For Climate Refugees, the absence of early protection mechanisms at the internal level often contributes directly to later cross-border protection claims, exposing the interconnected nature of internal displacement and international legal responsibility.

3. International refugee law and its structural limits

3.1 The 1951 Convention framework

International refugee law is built around the definition contained in the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. A refugee is a person who is outside their country of nationality and is unable or unwilling to avail themselves of that country’s protection due to a well-founded fear of persecution based on race, religion, nationality, membership of a particular social group, or political opinion. Each element of this definition reflects the Convention’s original protection logic, which was designed to respond to targeted, human-made forms of harm arising from state action or tolerated private violence (Goodwin-Gill and McAdam, 2021).

The concept of persecution is central. It requires serious harm combined with a failure of state protection, and it presupposes a human agent, either directly inflicting harm or knowingly allowing it to occur. Environmental degradation, extreme weather events, or sea-level rise do not, by themselves, constitute persecution because they lack the element of intent or discriminatory conduct directed at an individual or group. Even when environmental harm threatens life or subsistence, it is generally characterised as a condition affecting the population at large rather than a targeted violation linked to a Convention ground (Hathaway and Foster, 2014).

This structural design explains why environmental harm alone does not satisfy the persecution requirement. Refugee law was never conceived as a general protection mechanism against all forms of serious harm. Its normative core lies in surrogate protection against political, social, or identity-based exclusion. As a result, claims based solely on climate impacts typically fail at the definitional stage, regardless of the severity of the environmental threat.

3.2 Climate change and the concept of persecution

Although climate change itself does not amount to persecution, it can intersect with persecutory conduct in legally relevant ways. One pathway arises when States distribute disaster relief or adaptation resources in a discriminatory manner. If access to emergency assistance, housing, or recovery programmes is denied to individuals or communities on the basis of race, ethnicity, religion, or social group membership, the resulting harm may qualify as persecution under the Convention (McAdam, 2012).

A second pathway concerns exclusion from land, housing, or natural resources. Climate stress often intensifies competition over land and water. Where States respond by forcibly evicting marginalised groups, denying land tenure, or reallocating resources along discriminatory lines, environmental harm becomes entangled with deliberate rights violations. In such cases, the environmental context does not replace persecution but forms part of the factual matrix through which persecution is carried out (Foster, 2020).

A third pathway involves state neglect that disproportionately affects protected groups. Failure to provide basic services, disaster preparedness, or protection may amount to persecution when it is systematic, discriminatory, and results in serious harm. The key legal issue is not the absence of capacity alone, but the presence of differential treatment or intentional disregard linked to a Convention ground.

Across all these scenarios, evidentiary and nexus requirements remain decisive. Applicants must demonstrate an individualised risk of serious harm, a causal connection between that harm and a Convention ground, and the inability or unwillingness of the State to provide protection. Climate impacts may explain the context in which persecution occurs, but they do not lower the threshold of proof required under refugee law. This evidentiary burden represents a major obstacle for Climate Refugees seeking recognition within the Convention framework.

3.3 Regional refugee law expansions

Some regional refugee instruments adopt broader definitions that move beyond the strict persecution model of the 1951 Convention. These frameworks extend protection to persons fleeing external aggression, occupation, foreign domination, or events seriously disturbing public order. Such language has been interpreted to include situations of generalised violence and large-scale disruption, potentially offering a more flexible entry point for climate-related displacement (Sharpe, 2018).

In theory, severe climate disasters that destabilise public order or overwhelm state capacity could fall within these expanded definitions. In practice, however, doctrinal uncertainty persists. State practice remains inconsistent, and there is no settled jurisprudence confirming that climate-induced displacement, particularly slow-onset processes, qualifies as an “event seriously disturbing public order.” Decision-makers often continue to interpret these clauses through the lens of conflict and violence rather than environmental collapse.

This uncertainty limits the practical utility of regional expansions for Climate Refugees. While the broader language creates interpretive space, its application depends heavily on political will and administrative discretion. As a result, protection outcomes vary widely across regions and cases, undermining predictability and legal certainty.

3.4 Group-based and prima facie recognition

Group-based or prima facie refugee recognition is typically employed in situations of mass influx, where individual status determination is impractical. Such approaches presume refugee status for members of a group fleeing a common situation of danger. In principle, this mechanism could respond to large-scale climate-related displacement triggered by sudden-onset disasters.

In practice, significant legal and administrative constraints limit its applicability. Mass influx frameworks are designed for acute emergencies rather than gradual environmental decline. They also rely on political decisions to activate group recognition, which States may resist in climate contexts due to concerns about precedent, responsibility, and long-term settlement obligations (Betts, 2013).

Furthermore, prima facie recognition does not resolve the underlying definitional mismatch between climate harm and refugee law. It offers procedural flexibility but does not alter the substantive criteria of refugee status. As a result, group-based approaches may provide temporary relief in exceptional circumstances. Still, they cannot serve as a comprehensive or durable solution for Climate Refugees within the existing refugee law architecture.

4. Human rights law as the primary protection baseline

4.1 Non-refoulement beyond refugee law

Human rights law provides the most robust and universally applicable baseline of protection for Climate Refugees, primarily through the principle of non-refoulement. Unlike refugee law, non-refoulement under international human rights law is not limited to specific grounds of persecution. It derives principally from the right to life and the prohibition of torture and cruel, inhuman, or degrading treatment. These norms impose an obligation on States not to remove individuals to territories where they face a real risk of irreparable harm (Nowak, 2019).

The legal thresholds governing human-rights-based non-refoulement are well established but demanding. First, the risk must be real rather than speculative, supported by credible evidence. Second, the harm feared must reach a minimum level of severity, typically involving threats to life or exposure to inhuman treatment. Third, the harm must be foreseeable at the time of removal, assessed on the basis of current and reasonably predictable conditions. Fourth, the risk must be sufficiently individualised, meaning that general conditions affecting the population at large are usually insufficient unless the applicant can demonstrate particular vulnerability (Goodwin-Gill and McAdam, 2021).

These criteria reflect a balance between protection and State sovereignty. Human rights law does not create a general right to remain based on adverse living conditions. It intervenes only when removal would expose an individual to harm of an exceptional and irreversible character. This framework explains both the relevance and the limits of human rights law for climate-related protection claims.

4.2 Climate change, life-threatening conditions, and removal

Recent international jurisprudence has recognised that climate change can, in principle, threaten the right to life in removal contexts. Human rights bodies have acknowledged that environmental degradation, including sea-level rise and extreme climate impacts, may render return incompatible with fundamental rights if conditions reach a critical threshold. This recognition marks an important doctrinal development, as it confirms that environmental factors are not legally irrelevant in non-refoulement analysis.

At the same time, existing doctrine imposes strict constraints on successful claims. Decision-making bodies have consistently required that the risk to life be imminent rather than merely prospective. Long-term or gradual environmental decline, even when scientifically well documented, is often considered insufficient unless it translates into a near-term threat of death or inhuman treatment. Moreover, applicants must demonstrate that they personally face such a risk, rather than relying on generalized environmental conditions affecting the broader population (Human Rights Committee, 2020).

These requirements significantly limit the protective reach of human rights law for Climate Refugees. Many individuals flee precisely because environmental degradation makes long-term survival untenable, not because death is immediate. The law’s focus on imminence and personal risk thus creates a temporal mismatch between legal thresholds and the realities of climate-induced displacement.

4.3 Socio-economic deprivation and protection thresholds

Severe socio-economic deprivation resulting from climate change raises difficult questions for human rights protection. International human rights law recognises rights to water, food, health, and adequate housing, and it accepts that extreme deprivation may, in exceptional cases, amount to inhuman or degrading treatment. In removal cases, however, the threshold remains exceptionally high.

For deprivation to trigger non-refoulement obligations, it must reach a level where basic survival is threatened and where the individual would be exposed to intense suffering or death. This typically requires evidence of a complete or near-complete absence of access to essential resources, coupled with the inability of the State of origin to provide even minimal protection (Foster, 2020).

Most climate-related hardship does not meet this standard. Even where living conditions are harsh, insecure, or degrading, decision-makers frequently conclude that they fall short of the extreme severity required under human rights jurisprudence. As a result, socio-economic harm caused or aggravated by climate change is often acknowledged but deemed legally insufficient to prevent removal. This doctrinal stance reinforces the structural gap faced by Climate Refugees, whose displacement is driven by cumulative deprivation rather than sudden catastrophe.

4.4 Procedural obligations of receiving States

Human rights law also imposes procedural obligations on States when assessing asylum and removal decisions. These duties are particularly significant in climate-related claims, where risk assessments depend on complex factual evaluations. States must provide access to fair and effective procedures, including the right to present evidence, access to interpretation and legal assistance, and reasoned decisions subject to review (UNHCR, 2023).

Procedural safeguards acquire heightened importance in the context of mixed movements and accelerated border procedures. Climate-displaced individuals often arrive alongside economic migrants and refugees fleeing conflict, increasing the risk that their claims will be filtered out through summary or expedited processes. Human rights law requires that removal not take place until a meaningful assessment of risk has been conducted, regardless of the applicant’s mode of entry or migratory classification.

Failure to comply with these procedural duties can itself amount to a violation of human rights obligations. For Climate Refugees, access to individualized and careful procedures is often the decisive factor determining whether the substantive protections of non-refoulement can be effectively invoked.

5. Complementary and subsidiary protection regimes

5.1 Complementary protection as a de facto solution

Complementary protection has emerged as the principal legal mechanism addressing the protection gap faced by Climate Refugees who do not meet the strict definition of a refugee under the 1951 Convention. Rooted primarily in international human rights law, complementary protection is granted when removal would expose an individual to serious harm, such as threats to life or inhuman treatment, even in the absence of persecution linked to a Convention ground (Goodwin-Gill and McAdam, 2021).

In practice, complementary protection operates as a residual safeguard. It allows States to comply with non-refoulement obligations without expanding the refugee definition. For individuals displaced by climate-related factors, this pathway is often the only legally viable option, particularly where environmental degradation creates life-threatening conditions without discriminatory intent or targeted violence. As a result, complementary protection functions as a de facto solution for many Climate Refugees, despite its secondary status within protection hierarchies (McAdam, 2012).

However, complementary protection regimes are highly fragmented. Eligibility criteria, procedural guarantees, and the scope of rights attached to protection status vary widely across jurisdictions. Some States provide residence permits with access to work, social assistance, and family reunification, while others offer only temporary or precarious status with limited rights. This fragmentation generates legal uncertainty for beneficiaries, who often lack clarity regarding the duration of their stay, pathways to permanent residence, or prospects for integration. From a systemic perspective, reliance on complementary protection underscores the absence of a coherent international response to climate-related displacement.

5.2 Temporary protection and disaster-related admission

Temporary protection has been used by States as an emergency response to sudden-onset disasters that produce large-scale displacement. Unlike refugee status or complementary protection, temporary protection is typically activated through executive or legislative measures and applies on a group basis. Its primary objective is to provide immediate safety and basic rights without engaging in individualized status determination (Betts, 2013).

In the context of climate-related disasters, temporary protection offers practical advantages. It allows rapid admission, reduces administrative burdens, and responds to humanitarian imperatives following extreme weather events. For Climate Refugees displaced by cyclones, floods, or similar catastrophes, temporary protection may provide short-term security and access to essential services.

Despite these advantages, temporary protection is structurally limited. Its defining feature is temporality, which creates legal insecurity for beneficiaries. Protection is often granted for fixed periods and subject to renewal at the discretion of the host State. Long-term integration, access to permanent residence, and family reunification are frequently excluded or deferred. Where environmental damage is irreversible or recovery is slow, temporary protection fails to offer a durable solution, leaving individuals in prolonged uncertainty (Foster, 2020).

These limitations are particularly problematic in climate contexts, where displacement may be permanent even if triggered by a single disaster. Temporary protection mechanisms are ill-suited to address such realities, as they are premised on the expectation of return that may no longer be feasible.

5.3 Humanitarian visas and discretionary pathways

Humanitarian visas and other discretionary admission pathways constitute another layer of protection relevant to Climate Refugees. These mechanisms are grounded in domestic law but are influenced by international human rights norms and humanitarian considerations. They allow States to admit individuals facing exceptional hardship without formally recognising international protection status (Chetail, 2014).

Humanitarian admission schemes can be tailored to specific circumstances, including environmental disasters, medical vulnerability, or humanitarian crises. Their flexibility enables States to respond to emerging forms of displacement without committing to binding international obligations. For individuals affected by climate change, humanitarian visas may offer a lawful route to safety where asylum systems are inaccessible or inappropriate.

At the same time, these pathways carry significant risks. Decisions are often discretionary, opaque, and unevenly applied. Eligibility criteria may be narrow, poorly defined, or subject to sudden policy changes. Beneficiaries typically enjoy fewer rights than recognised refugees or holders of complementary protection, and their status may lack stability or clear prospects for long-term residence. The absence of enforceable entitlements means that humanitarian admission does not provide predictable or rights-based protection.

Reliance on discretionary pathways reflects a broader trend in which States manage climate-related mobility through ad hoc measures rather than legally binding frameworks. While humanitarian visas may alleviate individual hardship, they do not address the systemic protection deficit faced by Climate Refugees and risk entrenching unequal and selective access to protection.

6. Internal displacement, planned relocation, and legal accountability

6.1 The legal framework for internally displaced persons

Most climate-related displacement occurs within States, making the law governing internally displaced persons (IDPs) central to the lived reality of Climate Refugees. International law, however, does not contain a binding global treaty specifically dedicated to IDPs. Instead, the normative framework relies on a combination of general human rights law, international humanitarian law, where applicable, and soft-law instruments, most prominently the Guiding Principles on Internal Displacement. The Guiding Principles do not create new obligations but consolidate and clarify existing duties, including protection against arbitrary displacement, access to humanitarian assistance, and guarantees of safety and dignity during displacement and return or resettlement (UN Commission on Human Rights, 1998).

Regional treaties have partially filled this gap. The most legally significant is the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), which is binding on its parties and explicitly addresses displacement caused by natural or human-made disasters. It imposes duties to prevent displacement, protect displaced persons during displacement, and support durable solutions, including local integration and relocation. This instrument matters doctrinally because it demonstrates that disaster-related internal displacement can be regulated through binding international commitments, rather than mere policy coordination (African Union, 2009).

Despite these frameworks, protection gaps remain severe. The legal architecture assumes that the State of origin retains primary responsibility and capability. Where States lack institutional capacity, territorial control, or political willingness, displaced persons may face prolonged exposure to violence, exploitation, and destitution with limited avenues for enforcement. Weak governance can convert climate-related displacement into a human rights crisis, particularly where land tenure disputes, corruption, or discriminatory allocation of resources deprive displaced communities of protection and assistance (Kälin and Schrepfer, 2012). The result is a structural accountability deficit: IDPs often have rights in principle but limited access to remedies in practice.

6.2 Planned relocation and human rights safeguards

Planned relocation has become a prominent governance response to climate risk, especially in areas facing recurrent disasters, chronic erosion, or increasing uninhabitability. Legally, relocation raises complex issues because it can function either as a protective measure or as an instrument of coercion. From a human rights perspective, relocation must be assessed as a form of displacement that is lawful only if it complies with strict safeguards designed to protect dignity, autonomy, and community integrity (UNHCR, 2023).

Consent is a central requirement. While emergencies may justify temporary evacuation, long-term relocation should not be imposed without meaningful consent, especially where entire communities are moved. Consent must be informed and free from coercion, which requires transparency about climate risks, relocation options, and the long-term consequences for rights and livelihoods (McAdam, 2012).

Participation is equally critical. International standards emphasise that affected communities must be involved in decision-making, including site selection, housing design, livelihood planning, and social infrastructure. Participation is not procedural symbolism; it is a rights-based safeguard that reduces the likelihood of relocation failure and secondary displacement.

Compensation and restitution requirements also arise. Relocation typically involves the loss of land, housing, and economic assets. States must ensure compensation for lost property and provide secure tenure at relocation sites. Without compensation and tenure security, relocation can reproduce vulnerability and deepen poverty.

Cultural protection and livelihood continuity are often decisive for relocation outcomes. For Indigenous peoples, coastal communities, and subsistence-based populations, territory and livelihood are tied to identity, culture, and social structure. Relocation that severs these ties can constitute severe cultural harm, potentially engaging rights related to minority protection, family life, and cultural participation. Durable relocation therefore requires livelihood continuity through access to employment, resources, education, and health care at the new site, not merely physical safety (Kälin and Schrepfer, 2012).

6.3 When internal solutions fail

Internal displacement governance matters for Climate Refugees because failures in internal solutions frequently generate later cross-border movement. Where adaptation measures are inadequate, disaster response is discriminatory, or planned relocation collapses, individuals may face repeated displacement, loss of assets, and cumulative deprivation. Over time, these dynamics erode the feasibility of remaining in the country of origin and can transform internal displacement into cross-border flight with potential legal consequences.

Failed relocation is a common pathway. Relocation sites may lack infrastructure, employment opportunities, or access to services, leading to secondary displacement. If communities are relocated without secure tenure, they may be pushed out by land disputes or exploitation. Such failures often increase vulnerability rather than reduce it, making international movement a rational survival strategy rather than a discretionary choice.

These failures also intersect with protection claims abroad. Prior internal displacement can support arguments that there is no viable internal protection alternative, which is relevant in refugee status determination and complementary protection analysis. It can also provide evidence of a state's inability or unwillingness to ensure basic conditions of life, which may become legally relevant under human-rights-based non-refoulement standards (Human Rights Committee, 2020).

Finally, persistent internal displacement failures connect to broader debates on external responsibility and international cooperation. If climate impacts are linked to global emissions patterns and unequal adaptive capacity, the inadequacy of internal solutions strengthens arguments that protection cannot remain solely a matter of domestic responsibility. While current international law does not provide a clear liability pathway that compels admission of Climate Refugees, repeated internal failures reinforce the normative and political case for enhanced international cooperation, mobility pathways, and responsibility-sharing mechanisms grounded in the duties of assistance and solidarity recognised across multiple legal regimes (IPCC, 2022).

7. Statehood, territory, and climate-induced displacement

7.1 Sea-level rise and territorial loss

Sea-level rise presents one of the most disruptive challenges to the foundational assumptions of public international law. Classical doctrines of statehood presuppose a stable territorial base, a permanent population, an effective government, and the capacity to enter into relations with other States. Climate-induced territorial loss, particularly for low-lying island States and coastal regions, calls into question how these criteria operate when territory becomes partially or wholly uninhabitable due to environmental change (Crawford, 2006).

A central legal issue concerns maritime baselines and maritime zones. Under the United Nations Convention on the Law of the Sea, baselines are normally drawn along the low-water line of the coast, from which territorial seas, exclusive economic zones, and continental shelves are measured. Sea-level rise threatens to alter coastlines, potentially causing baselines to retreat landward and maritime zones to shrink. This creates uncertainty regarding the permanence of maritime entitlements and raises questions about whether existing maritime boundaries should remain fixed or move with changing coastlines (Rayfuse, 2010).

The consequences extend beyond resource entitlements. For States whose territory may become entirely submerged or uninhabitable, the question arises as to whether statehood can persist without a viable territorial base. International law provides no clear answer. There is no precedent for the extinction of a State due solely to environmental causes, nor is there a settled doctrine confirming that statehood can continue indefinitely without territory. While some scholars argue that state continuity should be preserved to avoid a legal vacuum and protect populations, others note that existing law lacks explicit rules to support such continuity (McAdam, 2012).

This legal indeterminacy reflects the fact that the current international legal order was not designed to address climate-driven territorial loss. Doctrines governing territory and statehood evolved in a context of relatively stable geography. As a result, international law presently offers no definitive guidance on how to manage the erosion or disappearance of State territory due to sea-level rise, leaving affected populations in a position of profound legal uncertainty.

7.2 Nationality, statelessness, and effective protection

Climate-induced displacement linked to territorial loss also raises acute issues concerning nationality and statelessness. Even where a State continues to exist formally, individuals displaced abroad may experience de facto statelessness. This occurs when nationality is retained in law but no longer provides effective protection, meaningful rights, or access to State institutions (Edwards and van Waas, 2014).

For populations from low-lying island States, continued nationality may offer limited practical benefit if the State lacks territory, administrative capacity, or diplomatic presence. Access to documentation, consular assistance, and political participation may become increasingly difficult, particularly for those living long-term outside the country of origin. In such situations, individuals are not stateless in a formal legal sense, but they may be unable to rely on their nationality to secure basic rights or protection abroad.

These dynamics have significant implications for diplomatic protection. Classical international law treats diplomatic protection as a discretionary right of the State, exercised on behalf of its nationals. If a State’s capacity to act internationally diminishes due to territorial loss or population dispersal, its ability to provide diplomatic protection may be severely constrained. Individuals displaced by climate change may therefore find themselves without an effective advocate in international relations, even though they formally possess nationality (Crawford, 2006).

Access to rights in host States is also affected. Many legal systems tie residence rights, employment access, and social protection to immigration status rather than nationality alone. Climate-displaced persons whose nationality does not trigger refugee or complementary protection status may remain in precarious legal positions, with limited access to long-term residence or integration pathways. This gap exposes a structural weakness in international law: it assumes that nationality functions as a reliable conduit for protection, an assumption that becomes increasingly fragile in the context of climate-induced displacement.

The risk of de facto statelessness, therefore, illustrates how climate change destabilises core legal concepts without directly violating existing norms. International law has not yet adapted its nationality and statehood doctrines to ensure effective protection for populations displaced by environmental change, leaving Climate Refugees exposed to legal limbo even when formal legal status is preserved.

8. International climate law and displacement

8.1 Climate treaties and the absence of individual protection

International climate law acknowledges that climate change affects human wellbeing and can contribute to displacement, but it does not create an individual legal status or entitlement to admission for Climate Refugees. This is not an oversight; it reflects the architecture and objectives of the climate regime. The United Nations Framework Convention on Climate Change, the Kyoto Protocol, and the Paris Agreement are structured as cooperative frameworks for regulating State conduct, primarily through mitigation commitments, adaptation planning, and financial and technological cooperation. Their core logic is regulatory and distributive rather than protective in the sense associated with refugee and human rights law (Bodansky, Brunnée and Rajamani, 2017).

Mitigation obligations aim to reduce greenhouse gas emissions and limit long-term warming. Adaptation obligations focus on resilience and risk reduction within States. Finance mechanisms seek to support developing States in implementing mitigation and adaptation measures. These components address displacement only indirectly, through the assumption that preventing or reducing climate harm will reduce displacement pressures. As a result, the climate regime is aimed at managing the drivers of displacement rather than conferring rights on displaced individuals (Mayer, 2018).

This design also explains the absence of an individual protection status. Creating a climate-displacement status would require agreement on eligibility criteria, causation standards, and allocation of responsibilities for admission and long-term residence. These questions implicate migration sovereignty and distributive justice in ways that States have historically resisted in treaty-making. The climate regime has therefore remained focused on collective action problems rather than the legal status of those already harmed.

Loss-and-damage mechanisms illustrate this limitation. The concept of loss and damage refers to climate impacts that cannot be avoided through mitigation or adaptation, including irreversible harm. In institutional terms, loss-and-damage arrangements focus on funding, technical support, and coordination, not on enforceable entitlements for individuals displaced by climate change. Even where resources are made available, they are typically channelled through States and institutions, not through rights-based claims by displaced persons. For Climate Refugees, loss-and-damage mechanisms may contribute to prevention, resilience, or recovery, but they do not resolve the legal question of admission, status, or non-returnability abroad (Mayer, 2018).

In short, international climate law is structurally designed to manage risk and allocate support between States. It is not a protection regime comparable to refugee law or human rights law, and it currently cannot function as a substitute for international protection.

8.2 Human mobility within climate governance

Although climate treaties do not provide individual status, human mobility has become increasingly visible within climate governance through soft-law mechanisms and policy coordination. These initiatives aim to address displacement as a policy challenge linked to adaptation, disaster risk reduction, and resilience-building.

Within the climate regime, human mobility has been addressed through institutional coordination and guidance rather than binding rules. Mechanisms have emerged to promote better data collection, strengthen early warning systems, support planned relocation, and encourage cooperation on displacement-related challenges. This approach reflects the political reality that States are more willing to cooperate on prevention and preparedness than on binding admission commitments for Climate Refugees.

The normative influence of these non-binding mechanisms should not be dismissed. Soft law can shape expectations, consolidate best practices, and influence domestic implementation. It can also contribute to the gradual emergence of interpretive standards that affect how binding obligations in other regimes are applied. For example, guidance on planned relocation, risk reduction, and protection-sensitive disaster response may strengthen the factual and legal foundations for later human-rights-based claims when individuals seek protection abroad. Soft-law coordination can also inform how decision-makers evaluate foreseeability, vulnerability, and state capacity in removal cases (Scott, 2020).

At the same time, soft-law mechanisms remain limited. Their effectiveness depends on political will, funding, institutional capacity, and domestic uptake. They do not create enforceable rights for displaced persons, and they do not compel States to accept migrants displaced by climate impacts. For this reason, climate governance on mobility functions primarily as a preventive and managerial framework rather than a legal protection solution.

The result is a governance asymmetry. International climate law increasingly recognises displacement as a serious consequence of climate change, but it continues to approach it through coordination and support rather than through legal entitlements for Climate Refugees. This reinforces the broader protection gap: the climate regime helps explain and manage displacement pressures, but it does not provide a legal answer for individuals seeking cross-border protection.

9. Responsibility, cooperation, and burden-sharing

9.1 State responsibility and climate harm

The question of responsibility for Climate Refugees is often framed in terms of “who caused the harm.” International law, however, struggles to translate that intuition into enforceable legal liability. The classical law of State responsibility is built around the attribution of a wrongful act to a State, breach of an international obligation, and a sufficient causal link between the wrongful act and the injury. Climate harm disrupts each element.

Attribution is not usually the main obstacle; emissions can be linked to States through inventories, regulation, and the activities of entities under their jurisdiction. The harder problem is the identification of a specific breach capable of grounding responsibility. Many climate obligations are formulated as procedural duties, collective commitments, or flexible standards rather than strict, individually justiciable obligations with clear breach criteria. Even where obligations exist, they are embedded in a cooperative regime that often emphasises progressive implementation and differentiated responsibilities (Bodansky, Brunnée and Rajamani, 2017).

Causation creates the deepest doctrinal difficulty. Climate change is a cumulative phenomenon produced by many actors over long periods. The harm experienced by a specific community displaced by drought, sea-level rise, or disaster is mediated through local exposure, vulnerability, and governance. Traditional responsibility doctrine tends to operate most cleanly where a single wrongful act can be linked to a distinct injury. Climate displacement is generally multi-causal, probabilistic, and temporally extended. This makes it difficult to establish that one State’s conduct was a sufficiently direct cause of a specific displacement event, particularly at the level of legal proof required in contentious proceedings (Mayer, 2018).

Standing also constrains liability claims. Even where harm is severe, the procedural pathways for affected individuals or communities to bring claims against emitting States remain limited. International adjudication typically requires State-to-State proceedings or treaty-based jurisdiction, and many climate and human rights obligations have restricted enforcement routes. These limits mean that responsibility debates often outpace available legal fora.

This doctrinal reality requires a clear distinction between moral responsibility and legal liability. Moral arguments, grounded in fairness and historical emissions, are central in political negotiations and can shape cooperative solutions. Legal liability, by contrast, requires meeting doctrinal thresholds of breach, causation, and jurisdiction. For Climate Refugees, the moral case for responsibility-sharing is strong; the legal case is more constrained and remains contested.

9.2 Due diligence and prevention obligations

While the law of responsibility faces structural hurdles, due diligence provides a more workable doctrinal frame for analysing climate-related duties. Due diligence obligations do not require a State to guarantee particular outcomes; they require States to take reasonable measures, in good faith, to prevent foreseeable harm, reduce risk, and protect individuals within their jurisdiction. This logic is familiar in environmental law and has increasingly influenced the interpretation of human rights obligations in the context of climate change (Boyle, 2012).

Emerging expectations cluster around three domains: mitigation, adaptation, and disaster risk reduction. Mitigation duties involve regulating emissions and pursuing measures consistent with limiting harmful climate impacts. Adaptation duties concern building resilience, reducing exposure, and ensuring that vulnerable communities can cope with climate stress. Disaster risk reduction emphasises preparedness, early warning systems, evacuation planning, and protection of critical infrastructure.

These duties interact with human rights obligations in ways directly relevant to Climate Refugees. The right to life, the right to health, and the prohibition of inhuman treatment can require States to take preventive measures against foreseeable environmental threats. Human rights bodies increasingly treat climate risks as capable of engaging positive obligations, especially where States fail to protect vulnerable groups from known hazards. The key doctrinal move is that human rights law can impose obligations to protect against environmental harm, not merely to refrain from direct violations (Knox, 2018).

For displacement, this interaction matters in two ways. First, inadequate mitigation and adaptation may contribute to conditions that compel people to move. Second, failures in disaster risk reduction and protection of vulnerable communities may strengthen claims that return is unsafe or that domestic protection is ineffective. Due diligence thus becomes legally relevant both as a preventive obligation and as a factor shaping international protection claims abroad.

However, due diligence standards remain context-dependent and contested. What counts as “reasonable measures” varies by capacity, resources, knowledge, and institutional readiness. The difficulty is not that due diligence is legally irrelevant, but that it produces a spectrum of obligations that are hard to translate into precise liability for displacement outcomes.

9.3 International cooperation and solidarity mechanisms

Because liability pathways are uncertain and protection needs are immediate, cooperation and solidarity mechanisms have become the most realistic tools for addressing Climate Refugees. Cooperation in this context is not merely a political aspiration; it is a recurring legal principle across regimes, including the climate system, humanitarian practice, and aspects of human rights law. The practical question is how cooperation can be designed to produce predictable protection outcomes without requiring a new global refugee category.

Relocation schemes are one mechanism. These may be planned in advance for communities facing severe and foreseeable loss of habitability, especially small island and coastal populations. The feasibility of relocation depends on funding, land availability, legal status pathways, and safeguards for cultural continuity and livelihood reconstruction. Relocation is also politically sensitive: receiving States face domestic resistance, while sending States may fear the erosion of sovereignty or identity. Durable relocation requires long-term legal security, not temporary stays (McAdam, 2012).

Labour mobility pathways offer another approach. Rather than framing movement solely as humanitarian protection, States may expand migration routes for workers from climate-vulnerable regions. This approach can reduce irregular movement and provide economic stability, but it risks excluding those who are most vulnerable and least able to meet labour criteria. Labour pathways can also create dependency and unequal bargaining power unless rights protections are robust. For Climate Refugees, labour mobility may function as prevention and adaptation, but it does not replace protection for those fleeing acute harm.

Regional agreements can operationalise burden-sharing more effectively than global treaties. States with geographic proximity and shared migration systems are often better placed to design coordinated admission tools, mutual assistance, and predictable responses to displacement. Regional free movement regimes and cross-border disaster arrangements can reduce protection gaps by providing lawful mobility options and shared administrative procedures. Yet regional approaches face their own constraints: unequal capacities, political instability, and divergent interests can undermine sustained cooperation.

Any solidarity mechanism must confront feasibility, fairness, and political constraints. Feasibility depends on administrative design, funding, and enforceability. Fairness requires attention to historical emissions, capacity, and vulnerability, while avoiding solutions that shift burdens onto already stressed neighbouring States. Political constraints are decisive: States often prefer flexible, discretionary tools over binding commitments, even when discretion undermines predictability.

A realistic international law approach for Climate Refugees is therefore likely to be incremental: expanding complementary protection practices, strengthening regional mobility arrangements, embedding safeguards for planned relocation, and aligning climate finance with displacement prevention. These measures do not resolve doctrinal gaps completely, but they address protection needs within the limits of existing legal and political structures.

10. Institutional roles and legal guidance

10.1 UNHCR’s evolving role

The Office of the United Nations High Commissioner for Refugees occupies a distinctive position in the legal architecture relevant to Climate Refugees. Under its Statute and the 1951 Convention system, UNHCR has an internationally recognised supervisory and interpretive role in relation to the application of refugee law. This authority is not judicial, but it is institutionally embedded: UNHCR is tasked with overseeing the implementation of international refugee instruments and has developed extensive interpretive guidance that is regularly relied upon by States, domestic courts, and administrative decision-makers (UNHCR, 2019).

In doctrinal terms, UNHCR’s interpretive authority is grounded in the structure of the refugee regime itself. Its Handbook and subsequent Guidelines provide systematic explanations of treaty concepts such as persecution, nexus, internal protection alternative, and credibility assessment. While UNHCR cannot amend treaty obligations, its interpretations carry persuasive weight, especially where they reflect consistent state practice, the object and purpose of the Convention, and a coherent reading of protection principles (Goodwin-Gill and McAdam, 2021).

UNHCR’s engagement with climate displacement has expanded significantly in response to evolving displacement patterns. Operationally, UNHCR has become involved in preparedness, protection-sensitive disaster responses, and support for States managing displacement associated with climate impacts. This engagement is partly humanitarian and partly protection-driven. It reflects a recognition that climate change intersects with existing drivers of forced displacement, including conflict, governance breakdown, and social marginalisation. UNHCR’s more recent outputs emphasise that climate change can shape international protection needs, not by creating a new refugee category, but by contributing to circumstances in which persecution, serious harm, or non-returnability may arise (UNHCR, 2023).

A critical doctrinal point is the legal weight of UNHCR guidance. UNHCR’s Handbooks, Guidelines, policy notes, and legal position papers are not binding sources of international law. They do not create obligations in the way that treaties, customary international law, or judicial decisions can. Their normative significance lies in their persuasive authority and their role in structuring legal reasoning. In practice, they influence interpretation, evidence assessment, and procedural standards, and they often shape how decision-makers understand the scope of protection duties. For Climate Refugees, UNHCR guidance is therefore best understood as a high-authority interpretive resource that can affect outcomes without altering the treaty text itself.

10.2 Fragmentation across international institutions

Protection for Climate Refugees is shaped by institutional fragmentation across multiple international regimes. Refugee law, human rights law, climate law, disaster risk reduction, and development cooperation operate through distinct treaties, institutions, and funding mechanisms. Each regime has its own mandate, conceptual vocabulary, and compliance tools. The result is that climate-related displacement is addressed through a patchwork of partially overlapping frameworks rather than a single coherent legal system (Betts, 2013).

Coordination challenges arise because the regimes address different aspects of the problem. Refugee law focuses on cross-border status and surrogate protection but is definitional and narrow. Human rights law provides non-refoulement and procedural safeguards but operates through high thresholds and case-by-case assessment. Climate law is oriented toward mitigation, adaptation, and finance, addressing displacement indirectly rather than through individual entitlement. Development institutions focus on resilience, poverty reduction, and infrastructure, often treating displacement as a planning problem rather than a legal rights issue.

These institutional divides produce practical consequences. First, predictability is weakened. Individuals affected by climate impacts may be channelled into different legal pathways depending on where they move, which institution responds, and which domestic procedure is available. Second, accountability is diluted. When multiple institutions share partial responsibility, gaps become easier to ignore and harder to remedy. Third, protection becomes contingent on discretionary policy tools rather than enforceable legal standards, especially for slow-onset displacement where no emergency trigger compels coordinated action (Mayer, 2018).

Fragmentation also affects evidence and risk assessment. Climate-displacement claims require integrating scientific projections, vulnerability analysis, and legal thresholds for harm. Yet institutions often operate with different evidentiary cultures and different understandings of risk. Climate institutions produce probabilistic risk models; refugee and human rights bodies tend to focus on individualized and immediate threats. This mismatch can cause systematic under-recognition of slow-onset harms in protection determinations.

For Climate Refugees, fragmentation undermines protection because it prevents the formation of a stable and widely understood pathway from climate harm to legal status and rights. It also encourages States to treat climate-related movement as a matter of migration control and discretionary assistance rather than as a predictable legal issue governed by coordinated norms. A realistic improvement strategy therefore depends on better institutional alignment: harmonising guidance, clarifying protection triggers, integrating displacement into adaptation planning, and ensuring that human rights safeguards are operationalised across accelerated migration procedures.

Also read

• The Paris Agreement Explained

• Territorial Disputes and International Law: Principles, Cases and Resolutions

• How International Law Deals with Stateless Persons

• International Responsibility in Public International Law

• International Covenant on Economic, Social and Cultural Rights Explained

• The Vienna Convention on the Law of Treaties

• Crimes Against Humanity in Contemporary International Law

• Rohingya Genocide: Law, Evidence, and Accountability

11. Reform options and doctrinal choices

11.1 Dynamic interpretation of existing law

Dynamic or evolutive interpretation has been widely proposed as a means of adapting existing legal frameworks to the realities faced by Climate Refugees without renegotiating treaties. Under this approach, treaty terms are interpreted in light of present-day conditions, scientific knowledge, and evolving understandings of harm. International courts and treaty bodies have long accepted evolutive interpretation as a legitimate method where treaty language is open-ended and the object and purpose of the instrument support adaptation over time (VCLT, art. 31).

In the climate displacement context, evolutive interpretation has been used to argue for a broader understanding of persecution, serious harm, or risk to life that accounts for environmental degradation. Human rights bodies have shown some openness to this approach by recognising that climate change can, in principle, engage non-refoulement obligations. This demonstrates that existing law is not entirely static.

At the same time, evolutive interpretation faces clear legal and legitimacy limits. Refugee law is anchored in a carefully negotiated definition that balances protection with State consent. Expanding core concepts too far risks stretching treaty language beyond what States plausibly accepted. Where interpretation begins to resemble amendment, States may resist or openly reject decisions, weakening compliance and undermining the authority of adjudicatory bodies (Hathaway and Foster, 2014).

There is also a risk of protection dilution. If refugee law is expanded to cover all forms of severe hardship, including environmental and economic distress, States may respond by narrowing recognition practices, increasing procedural barriers, or withdrawing political support for the regime as a whole. For Climate Refugees, an overly ambitious interpretive strategy could therefore be counterproductive, reducing protection rather than expanding it.

11.2 Treaty-based reform proposals

A second reform pathway involves treaty-based solutions. Proposals in this category include a protocol to the 1951 Refugee Convention covering climate-related displacement, a standalone international treaty on climate displacement, or binding mobility obligations within the climate regime itself. These proposals aim to provide clarity, predictability, and equitable responsibility-sharing.

From a doctrinal standpoint, treaty-based reform offers advantages. A dedicated instrument could define eligibility criteria, allocate responsibilities, and establish durable legal status for Climate Refugees. It could also harmonise standards across jurisdictions, reducing fragmentation and uncertainty.

Despite these theoretical benefits, consensus remains unlikely in the short to medium term. Migration control is a core aspect of State sovereignty, and States have consistently resisted binding admission obligations. Climate negotiations themselves illustrate the difficulty of reaching agreement even on collective mitigation targets, let alone on legally enforceable human mobility commitments. The diversity of displacement scenarios further complicates treaty design, as States differ sharply in exposure, capacity, and political priorities (McAdam, 2012).

There is also a strategic risk that pursuing comprehensive treaty reform could delay more practical solutions. Prolonged negotiations may create the appearance of progress while leaving existing protection gaps unaddressed. For these reasons, most recent institutional efforts have shifted away from treaty-making toward incremental and practice-based reforms.

11.3 Pragmatic regional and domestic solutions

Given the constraints of both evolutive interpretation and treaty reform, pragmatic regional and domestic solutions offer the most realistic prospects for immediate impact. These approaches operate within existing legal frameworks while enhancing protection outcomes for Climate Refugees.

Predictable humanitarian admission is a first priority. States can adopt clear criteria for admitting individuals displaced by environmental disasters or irreversible climate impacts, reducing reliance on ad hoc discretion. Predictability improves legal certainty for applicants and reduces administrative arbitrariness.

Protection-sensitive migration pathways represent a second avenue. Labour migration, family reunification, and education pathways can be adapted to account for climate vulnerability, enabling lawful mobility before conditions become life-threatening. Such pathways function as prevention as much as protection, though safeguards are needed to avoid exploitation and exclusion of the most vulnerable (Betts, 2013).

A third reform concerns the transition from temporary to permanent status. Temporary protection and humanitarian visas often leave Climate Refugees in prolonged insecurity. Domestic legal systems can mitigate this by establishing pathways to permanent residence or long-term protection where return is not feasible due to enduring environmental harm. This approach aligns legal status with factual reality and reduces the human and administrative costs of repeated renewals.

These pragmatic reforms do not require new international treaties, yet they can significantly improve protection if implemented consistently. Their effectiveness depends on political will, regional coordination, and integration with human rights safeguards. While they do not resolve the deeper doctrinal gaps in international law, they represent a legally realistic and immediately actionable response to the protection needs of Climate Refugees.

12. Conclusion

The analysis developed throughout this article demonstrates a clear doctrinal conclusion: Climate Refugees remain largely unprotected by status-based international law. Neither the 1951 Refugee Convention nor existing regional refugee instruments were designed to address displacement driven by environmental degradation, slow-onset climate processes, or irreversible territorial loss. While climate change is increasingly recognised as a driver of human mobility, it has not been translated into an autonomous ground of international protection. As a result, individuals displaced by climate impacts continue to fall outside the core architecture of refugee status, even where return would expose them to serious and enduring harm.

In the absence of a dedicated protection status, legal protection for Climate Refugees currently depends on a combination of indirect mechanisms. Human rights law provides the most consistent baseline through non-refoulement obligations derived from the right to life and the prohibition of inhuman treatment, though these protections are constrained by high thresholds of severity, imminence, and individualisation. Complementary and subsidiary protection regimes fill some gaps, but they remain fragmented, unevenly applied, and often precarious in duration and rights content. Beyond these frameworks, much protection is delivered through discretionary State practice, including temporary protection, humanitarian admission, and ad hoc policy responses to climate-related disasters.

This reliance on indirect and discretionary mechanisms reflects both legal and political realities. Attempts to expand refugee law through dynamic interpretation face legitimacy limits and risks of systemic backlash, while comprehensive treaty-based reform is unlikely to secure consensus in the foreseeable future. The protection gap facing Climate Refugees is therefore not primarily a consequence of doctrinal ignorance, but of structural constraints embedded in the international legal order.

A more effective protection trajectory is likely to emerge through incremental and coordinated approaches rather than through a single global treaty. This includes a more coherent interpretation of existing norms across refugee and human rights law, domestic legal engineering that creates predictable and durable protection pathways, and international cooperation that aligns climate adaptation, mobility management, and protection obligations. By integrating legal interpretation with pragmatic institutional design and solidarity-based cooperation, international law can respond more effectively to climate-induced displacement without undermining the stability of existing protection regimes.

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