Advancing legal rights in the context of climate and disaster displacement

Internal and cross-border climate and disaster displacement are not under-studied fields. An abundance of research spanning decades depicts a clear global map of the intersecting and multifaceted issues at play, and indeed, many solutions. 

However, the legal rights of those who have or will likely move are what hangs in the balance. Tensions between (or, perhaps, shortcomings of) the Refugee Convention and the rights of those impacted by climate displacement have led to the advancement of creative alternative protections. This article outlines the more promising elements of this fledgling legal landscape. 

The Refugee Convention and climate displacement

Readers of this blog will be deeply familiar with the accepted legal definition of a refugee, enshrined in Article 2 of the 1951 Refugee Convention. Namely, an individual outside their country of nationality seeking international protection from a well-founded fear of persecution from which the authorities of the country of origin are unable or unwilling to provide protection.

The additional guidance published by the UNHCR in 2023 explicitly states that ‘…people fleeing in the context of the adverse effects of climate change and disasters may have valid claims for refugee status under the 1951 Convention’. Through discouraging a narrow interpretation of climate factors, the guidance makes the soft case for expanding the refugee definition to include displacement as the result of climate factors. 

The Convention definition refers to a well-founded fear of persecution on the basis of race, nationality, religious belief, political opinion, or belonging to a particular social group. The UNHCR guidance observes that the cumulative immediate and longer-term diminution of human rights as the result of climate factors may amount to persecution. It reiterates the legal test: 

An individual claiming refugee status is not required to establish a risk of persecution over and above that of others similarly situated. The test is whether an individual’s fear of being persecuted is well-founded. In some cases, the adverse effects of climate change and disasters on an entire community may strengthen rather than weaken the evidence that justifies the fear of an individual being persecuted.

So, people fleeing climate factors are not barred from seeking refugee status. The issues arise instead from referring, en masse, to communities who are displaced due to climate and disasters as ‘climate refugees’. 

Firstly, parallel to the reality of legally recognised refugees, most people who have been displaced by or are vulnerable to climate factors are internally displaced persons. In short: no border crossed, no international protection triggered, no refugee status. In these instances of mainly rural-to-urban migration – from Honduras, to Jordan, to Pakistan – the bolstering of urban infrastructure, public services, and governance are arguably the relevant mitigating structures. 

Secondly, even where there is cross-border movement, the rate and scale of climate displacement requires more than a single international protection mechanism. The Platform on Disaster Displacement found that a sliding scale combination of domestic and regional approaches, rather than comprehensive international legal instruments (for instance, a codified expansion of the Refugee Convention, or an entirely new treaty), would be a more appropriate response to the nuanced experience of global climate and disaster displacement. It is well-established that the way in which climate change manifests and impacts communities is far from uniform, even within a single country. 

The Refugee Law Initiative Declaration on International Protection in the context of Disasters and Climate Change (the Declaration) takes this further by stating that:

3. International protection frameworks in refugee and human rights law are but one of a number of legal and policy tools that can facilitate admission and/or stay in another country for people affected by… the negative impacts of climate change in their country of origin…

4. Migration frameworks at the national and international levels… are often the primary tools for admission and stay of non-nationals affected by a disaster in their home country… 

5. In practice, then, international protection frameworks are likely to come into play only where a person facing serious risks arising in the context of disasters or the negative impacts of climate change in their home country is unable to access such migration pathways or where the migration frameworks do not adequately respond to protection needs in the individual case.

Lastly, we have yet to see explicit, positive, vested judicial engagement with the above positions. The foundations are there to support the advancement of these rights, the precedents are not. 

As such, the question is: if we remain fixated with the refugee-climate nexus, will we be precluded from taking an approach diverse enough to result in the most pertinent recognition of the rights in question? 

The potential of strategic litigation to carve out legal pathways

The Climiglaw Database highlights cases which have the potential to progress protections for climate and disaster displacement, directly and indirectly. It is important to consider that this legal issue is in fact not-so new, and has encompassed cross-border, internal, and non-asylum immigration for many years. In effect, we’d argue that it has been hiding in plain sight.

This article provides an overview of the categories of cases that have already been documented, and pushes for a broad strategic litigation initiative grounded in national, regional, and international collaborations to enhance adherence to the existing range of legal protections available to people facing climate and disaster displacement-related risks, and to identify promising avenues for progressive development of the law.

For instance, in Daniel Billy and others v Australia, the UN Human Rights Committee found that Australia had failed to reduce emissions and invest in adaptation initiatives. This significantly compromised the Torres Strait Islanders’ ability to remain on their traditional lands, and therefore their right to culture (protected by Article 27 ICCPR). The Committee also found a violation of Article 17 ICCPR protecting the right to private and family life and home. The Views adopted by the Committee articulate clear legal principles regarding the duty of states to take steps to address foreseeable displacement.

This landmark case against the Department of Arauca followed the displacement of victims of the Bojabá River flooding. The Colombian Constitutional Court reviewed international instruments on internal displacement due to environmental factors, and found that the state’s laws lack explicit guidelines for relocation and protection due to environmental displacement. Local authorities violated the applicants’ rights by only providing aid after the initial flooding, as compared to the longer term safeguarding extended to victims of conflict. The judgment urges Congress to develop a comprehensive framework to address internal environmental displacement.

In the same vein, we await the International Court of Justice’s Advisory Opinion on the obligations of states in respect of climate change, expected in early 2025. A number of states have taken up in their arguments the concerns and recommendations regarding climate displacement (and the right to stay) referenced in the thematic brief submitted to the Court. 

This whistle-stop tour summarises only some of the work that has been done to bolster the rights evoked as the result of climate and disaster induced displacement. The underlying sentiment is this: the groundwork is there. In some instances, it simply needs relabelling. In others, it requires further litigation to induce more frequent judicial engagement and increase the likelihood of beneficial precedents.