Recognition without regulation: The protection of ‘climate refugees’

As climate-induced displacement increases, legal protection lags behind. This post explores how current legal frameworks fail to safeguard millions of displaced people – despite growing international recognition.

On World Environment Day, we typically reflect on the effects of climate change on the natural world: melting ice caps, rising sea levels, and vanishing species. Yet climate change does not only affect nature, it also displaces people. According to the Internal Displacement Monitoring Centre, over 400 million people around the world have been forced to move due to floods, earthquakes, droughts and windstorms since 2008. These so-called climate refugees find themselves in a legal vacuum as they fall outside the classical frameworks of human rights law. This post will show the gap between the recognition of climate displacement as a reality and the legal protection available to those affected.

No legal status, no legal protection

Despite increasing public acknowledgement of climate-induced displacement, there is still no internationally recognised legal definition of a ‘climate refugee’. Under the 1951 Refugee Convention, a ‘refugee’ is someone outside their country of origin with a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership of a particular social group. Environmental degradation, no matter how severe, does not in itself constitute grounds for refugee status, unless it results in human-perpetrated persecution falling under the protection of the Convention.

This restrictive definition is incorporated into European law through Directive 2011/95/EU, which also provides subsidiary protection for individuals facing a real risk of serious harm, such as the death penalty, torture, inhuman or degrading treatment, or indiscriminate violence in armed conflict. However, displacement caused by environmental phenomena – such as droughts or floods – does not, in itself, meet these criteria. Unless such conditions can be linked to human-perpetrated harm, climate-displaced persons remain excluded from both international and European legal protection regimes.

Can climate litigation protect human rights?

Although there is no dedicated legal status for people displaced by climate change, human rights law has begun to offer alternative avenues for protection, particularly through the right to life protected under Article 6 of the International Covenant on Civil and Political Rights (ICCPR).

In the case Teitiota v. New Zealand (2020) the UN Human Rights Committee examined whether the deportation of the applicant to Kiribati – a low-lying island state threatened by rising sea levels – would violate Article 6 ICCPR. While the Committee recognised that climate change may, in extreme circumstances, trigger non-refoulement obligations under the right to life.This means that a state may be legally prohibited from returning someone to a place where environmental conditions pose a real, foreseeable, and personal threat to their life. However, the Committee found that Mr. Teitiota had not demonstrated a ‘sufficiently individualised’ and ‘imminent risk’ of irreparable harm. This high threshold is problematic in climate contexts, where harm is often collective, gradual, and structural.

A similar approach was taken in Billy et al. v. Australia (2023), where Torres Strait Islanders argued that Australia’s failure to implement adequate climate measures threatened their lives, homes and culture. The Committee found violations of Article 17 ICCPR (privacy, family, and home) and Article 27 ICCPR (minority cultural rights), but did not find a breach of Article 6 ICCPR (right to life); again, citing the absence of an immediate and personal threat. The dissenting members criticised this restrictive interpretation, arguing that the cumulative impact of rising seas, deteriorating health, and loss of food security posed a foreseeable threat to life.

Taken together, these cases reflect a growing recognition of climate-related harms within human rights law, while also exposing persistent gaps in the protection available to climate-affected communities.

Political (un)willingness

At the international level, climate-induced displacement has gained increasing attention. The Global Compact for Safe, Orderly and Regular Migration (2018) marks the most prominent international instrument to date recognising the nexus between climate change and human mobility. However, the Compact is non-binding and offers no enforceable rights for displaced individuals. Its implementation ultimately depends on national discretion and political will.

This is particularly problematic in the current political landscape: migration is increasingly framed in securitised, populist and electorally defensive terms, casting it as a threat to national sovereignty. Within this environment, proposals to legally recognise climate displacement as a protection ground are often dismissed as politically unviable.

The 2024 EU Pact on Migration and Asylum forms the core legislative framework for EU migration policy. Yet, it remains entirely silent on the issue of climate-induced displacement. The primary focus lies in harmonising procedures and enhancing solidarity between Member States, by controlling migration flows and reinforcing internal borders – reflecting the prevailing political stance on migration.