Legal Frameworks for Climate Refugees: International Initiatives and Protection Gaps

Millions of people worldwide are being forced from their homes due to rising seas, intensifying droughts, devastating floods, and other climate-related disasters. Yet despite the scale of this crisis, international law has struggled to keep pace. People displaced by environmental factors often find themselves in a legal grey zone-unable to access the protections traditionally afforded to refugees. This gap has sparked decades of international efforts to build frameworks that address climate-induced displacement, though significant challenges remain.

The emergence of climate displacement as an international concern 🔗

Climate-induced migration became a significant international concern in 2007 when UN Secretary-General Ban Ki-moon connected the Darfur conflict to ecological crises partly stemming from climate change. Writing in The Washington Post, Ban Ki-moon stated that the Darfur conflict began as an ecological crisis, arising at least in part from climate change. He pointed to the fact that average precipitation in southern Sudan had declined some 40 percent since the early 1980s, coinciding with rising temperatures in the Indian Ocean that disrupted seasonal monsoons.

The Sahel region of northern Sudan witnessed the Sahara Desert advance southward by almost a mile each year in the decades leading up to the conflict, with annual median rainfall decreasing by 15 to 30 percent. This environmental degradation intensified competition for dwindling resources between pastoralists and farmers, contributing to tensions that eventually erupted into violence. A 2007 UN Environment Programme study concluded that environmental degradation and regional climate instability were major underlying causes of food insecurity and conflict in Darfur.

This recognition marked a turning point. The connection drawn between climate change, ecological crisis, and forced displacement helped elevate the issue onto the international policy agenda, prompting negotiations that would eventually lead to concrete frameworks for addressing climate migration.

The 1951 Refugee Convention: Why it falls short 🔗

The 1951 Refugee Convention and its 1967 Protocol remain the cornerstone of international refugee protection. These documents define a refugee as someone with a well-founded fear of persecution based on race, religion, nationality, membership of a particular social group, or political opinion, who is outside their country of nationality and unable or unwilling to seek protection from their home country.

The problem is immediately apparent: climate hazards are not recognized as valid grounds for refugee status under this framework. People fleeing floods, droughts, rising sea levels, or other environmental disasters simply do not meet the legal definition of a refugee, regardless of how dire their circumstances.

One key distinction made by the UNHCR is that people displaced by environmental change could, in theory, still rely on the protection of their national governments-unlike traditional refugees, where states are often the source of persecution. However, this reasoning becomes problematic when governments lack the capacity to protect their citizens from climate impacts, or when climate change renders entire territories uninhabitable.

The legal void and its consequences 🔗

UN Secretary-General António Guterres has described this gap as a “legal void.” Scientists predict that over the next 30 years, 1.2 billion people could be displaced by climate change and natural disasters. The World Bank predicts climate change will cause 216 million people to be internally displaced by 2050.

Most climate-related displacement occurs within national borders, classifying affected people as internally displaced persons rather than refugees. Those who do cross international borders find themselves without guaranteed admission, assistance, or protection under existing international law. This leaves them vulnerable to exploitation, abuse, and human rights violations.

The Cancun Adaptation Framework: A first step 🔗

The United Nations Framework Convention on Climate Change first recognized the growing importance of human mobility with the adoption of the 2010 Cancun Adaptation Framework. This marked a significant milestone-the first time migration, displacement, and planned relocation were formally addressed within the UN climate negotiations process.

Paragraph 14(f) of the Cancun Framework called for measures to enhance understanding, coordination and cooperation with regard to climate change induced displacement, migration and planned relocation at national, regional and international levels. This language acknowledged these phenomena as important adaptation challenges and committed states to working together to address them.

The International Organization for Migration advocated for the adaptation framing early on and pushed for its inclusion in Cancun. The framework established that migration could be viewed not merely as a crisis to be managed, but potentially as an adaptation strategy to climate change when properly supported.

However, follow-up remained extremely limited in the years immediately following Cancun. The framework provided important conceptual recognition but lacked mechanisms for implementation or enforcement.

The Nansen Initiative: Building protection from the ground up 🔗

The Nansen Initiative was launched by the governments of Switzerland and Norway in October 2012, recognizing that under existing international law, there is no assurance that people forced by disasters to flee across international borders will be admitted and receive assistance. The initiative sought to fill this critical gap through a state-led, bottom-up consultative process.

The overall goal was to build consensus among states on key principles and elements to protect people displaced across borders in the context of disasters caused by natural hazards, including those linked to climate change. These are people who fall outside the protection of the 1951 Refugee Convention despite facing genuine threats to their safety and survival.

Key principles and approach 🔗

The Nansen Initiative adopted several core principles that continue to guide international efforts in this area. These include responding with adequate knowledge about displacement patterns and drivers, focusing on the most vulnerable populations, building resilience in communities at risk, and improving disaster preparedness to prevent displacement where possible.

The initiative held inter-governmental consultations within five sub-regions-the Pacific, Central America, the Greater Horn of Africa, Southeast Asia, and South Asia-along with separate civil society meetings. These consultations emphasized the diverse dynamics of cross-border displacement and highlighted the largely regional nature of these movements.

In October 2015, 109 states endorsed the Protection Agenda-a comprehensive framework presenting tools to manage and reduce displacement risks and to protect those who are displaced. Rather than calling for a new binding international convention, the agenda supports integrating effective practices into existing national and regional frameworks.

The Platform on Disaster Displacement 🔗

When the Nansen Initiative concluded its work in 2015, the Platform on Disaster Displacement was established in 2016 to implement the Protection Agenda and continue the initiative’s work. The Platform continues to advocate for improved protection of persons displaced across borders due to disasters and the negative impacts of climate change.

The New York Declaration and Global Compact on Migration 🔗

On September 19, 2016, the UN General Assembly unanimously adopted the New York Declaration for Refugees and Migrants-a landmark agreement that included commitments to address displacement caused by climate change and natural disasters.

The Declaration formally acknowledged the importance of migration, environment, and climate change linkages at the highest levels of international governance. It referenced the Nansen Protection Agenda and the Migrants in Countries in Crisis Principles as providing useful guidance on environmental and disaster displacement.

The New York Declaration committed member states to developing the Global Compact for Safe, Orderly and Regular Migration. This compact was adopted in Marrakesh, Morocco on December 10, 2018, becoming the first intergovernmental agreement prepared under UN auspices to cover all dimensions of international migration in a holistic and comprehensive manner.

What the Global Compact addresses 🔗

The GCM is a non-binding cooperation framework that articulates a common set of commitments based on 23 objectives for states to respond to the challenges and opportunities of contemporary international migration. Several of these objectives directly address climate-related displacement.

The compact recognizes that climate change mitigation and adaptation measures in countries of origin need to be prioritized to minimize drivers of migration. It also acknowledges that in-situ adaptation or return may not be possible in some cases, requiring the strengthening of regular migration pathways including planned relocation and visa options.

The GCM outlines the need for states to cooperate in developing solutions for people migrating in the context of slow-onset environmental degradation, particularly desertification, land degradation, drought, and sea level rise. It emphasizes working at regional levels to address environmental drivers of migration and improving data collection on climate-related movement.

Ongoing protection gaps and challenges 🔗

Despite this progress, significant gaps remain in the international framework for protecting climate-displaced persons. None of the key instruments-the Cancun Framework, the Protection Agenda, or the Global Compact-is legally binding. While they are highly authoritative, implementation remains largely voluntary and uneven across countries.

There is still no comprehensive international framework for protecting people who are forcibly displaced or migrate to another country in the context of disasters, environmental degradation, or climate change. International commitments to granting such persons the right to be admitted and not sent back-and to ensuring their access to livelihoods, services, and conditions necessary for a life in dignity-remain largely absent.

Recent legal developments 🔗

Some progress has occurred through courts and human rights mechanisms. The 2020 decision of the UN Human Rights Committee in Teitiota v New Zealand established new standards for climate change-related asylum claims. While the Committee concluded that climate-related conditions did not yet threaten life in Kiribati at the time of the case, it recognized that the right to life may prohibit deportation of people to countries where adverse impacts of climate change create life-threatening conditions.

The creation of a mandate for a Special Rapporteur on human rights in the context of climate change by the Human Rights Council in October 2021 further highlights the importance of human rights protections for people affected by global heating.

The path forward 🔗

Experts have identified several conditions necessary for effective action at scale. First, country-led action is essential-governments must assume primary responsibility for preventing displacement, protecting displaced persons, and finding durable solutions. This requires integrating displacement considerations into national development planning and institutionalizing whole-of-government approaches.

Second, a whole-of-society approach recognizes that communities at risk and displaced populations are people with rights, agency, and capacity. Their involvement must go beyond consultation to include community-based planning and systematic involvement of local civil society and private sector capacities.

Third, predictable and accessible financing remains critical. There is a need to significantly scale up financial support for displacement-sensitive climate action, including through improved access to the Green Climate Fund and similar financing mechanisms.

Regional approaches show particular promise. The Intergovernmental Authority on Development in the Horn of Africa recently finalized a protocol making free movement of persons explicitly available for those affected by disasters. In South and Central America, governments have adopted guidelines to harmonize immigration laws and make domestic practices more consistent and predictable for climate-displaced persons.

What do you think? Given the scale of projected climate displacement-potentially 216 million people by 2050-is a non-binding framework sufficient to address this crisis? What would it take to close the protection gap between traditional refugees and those forced to flee by climate change?

References

1. https://www.washingtonpost.com/wp-dyn/content/article/2007/06/15/AR2007061501857.html
2. https://www.accord.org.za/conflict-trends/environment-conflict-and-peacebuilding-addressing-the-root-causes-of-conflict-in-darfur/
3. https://reliefweb.int/report/sudan/sudan-climate-change-only-one-cause-among-many-darfur-conflict
4. https://www.unhcr.org/about-unhcr/overview/1951-refugee-convention
5. https://refugees.org/the-1951-refugee-convention-displacement-caused-by-climate-change/
6. https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/698753/EPRS_BRI(2021)698753_EN.pdf
7. https://gjia.georgetown.edu/2024/09/21/the-missing-refuge-for-climate-refugees-in-the-international-legal-framework-a-dialogue-with-caitlan-m-sussman/
8. https://environmentalmigration.iom.int/human-mobility-unfccc
9. https://disasterdisplacement.org/perspectives/climate-crisis-and-displacement-from-commitment-to-action/
10. https://www.tandfonline.com/doi/full/10.1080/14650045.2024.2368624
11. https://dgap.org/en/research/publications/mitigation-adaptation-migration
12. https://www.fmreview.org/climatechange-disasters/kaelin-2/
13. https://www.iom.int/platform-disaster-displacement
14. https://disasterdisplacement.org/wp-content/uploads/2014/08/EN_Protection_Agenda_Volume_I_-low_res.pdf
15. https://www.eda.admin.ch/eda/en/fdfa/foreign-policy/human-rights/migration/nansen-initiative.html
16. https://www.ohchr.org/en/migration/new-york-declaration-refugees-and-migrants
17. https://environmentalmigration.iom.int/environmental-migration-new-york-declaration
18. https://www.ohchr.org/en/migration/global-compact-safe-orderly-and-regular-migration-gcm
19. https://environmentalmigration.iom.int/10-key-takeaways-gcm-environmental-migration
20. https://refugeesinternational.org/reports-briefs/ensuring-that-the-global-compacts-on-refugees-and-migration-deliver/
21. https://www.e-ir.info/2024/08/13/are-climate-refugees-compatible-with-the-1951-refugee-convention/