Refugee Law Must Adapt to a World Where the Effects of Climate Change Rival Those of War
Recent footage from around the world showcases how the harrowing effects of climate change are pushing more people to migrate. But international law, stuck with Cold War–era persecution-based criteria, remains incapable of offering protection to climate refugees.
Remains of an abandoned house and pigsty that have been destroyed by rising waters in the village of Taborio, on the island of Tarawa in Kiribati. (Justin Mcmanus / the AGE / Fairfax Media via Getty Images)
Recent footage of hundreds dead and thousands fleeing destruction depicts scenes that could have come from Ukraine or Sudan. But with a backdrop of burnt palm and pine trees, what we actually saw was climate change’s destruction in Maui, Hawaii and Yellowknife, Canada. In Maui people abandoned their cars and leapt into the ocean as the fire engulfed the coastal town of Lahaina. Just as planes left Kabul as the Taliban approached Afghanistan’s capital, residents in Yellowknife were airlifted as the flames approached their city.
The devastation caused by war and the destruction wrought by climate change can be strikingly similar. But under international law, those who flee are treated differently. Under refugee law, only those persecuted because of their identity or political beliefs are entitled to protection. Those who flee climate change are entitled to nothing.
With the escalation of climate change, safeguarding those displaced by its consequences becomes imperative. Yet, current court cases show that even when protection is provided, it is often denied to those fleeing the economic effects of climate change. Therefore, if we are going to expand refugee law, we must make sure it is done right. Refugee law should extend not only to people who are directly impacted by climate change, but also to those who are economically impacted — both presently and in the near future.
Amid the rising wave of xenophobia, one might argue that the present moment is unfavorable for the expansion of refugee law. States are already ignoring current protections for refugees, so attempts to expand the law might seem futile. On the other hand, the escalating comprehension of climate catastrophes could potentially serve as a catalyst to reinforce refugee law and elicit empathy for those seeking refuge.
How Did We Get Here?
After World War II, the displacement of millions of people and growing concern for human rights created a need to protect those fleeing across borders. This bold vision, in its maximalist form, would effectively dissolve borders for refugees. Such a development, however, would conflict with the West’s postwar geopolitical rhetoric. If refugee status was granted to anyone whose life was at risk, Westerners living in poverty might flee to communist countries for asylum. This would undermine Cold War propaganda that capitalism provided a better living standard than communism.
For this reason, the definition of who was a refugee was limited. The Protocol Relating to the Status of Refugees defined a refugee as a person who was “being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” Those fleeing poverty were excluded from the definition. A dissident from the Soviet Union could claim asylum in the United States, but an American in poverty could not claim asylum in the USSR. Although a number of persecuted activists did escape from America, this was considerably smaller in scale compared to the millions in poverty who could have been protected had the refugee law been more comprehensive.
Despite the end of the Cold War, refugee law remains stuck in the past. Those fleeing poverty are called “economic migrants,” a label that marks them as less worthy of protection than those fleeing persecution. A case in point is that, according to international law, someone with a life-threatening condition like diabetes, who flees a country because they cannot afford insulin, will be denied asylum as a refugee. This is the case even though their life is equally at risk as those who are facing persecution. The emergence of climate change has further underscored the limitations of current refugee law.
Climate Refugees
Under international law, a person can claim asylum if they are persecuted, but only if they cannot find protection within their home country. If they can find safety elsewhere in their country, then they can be refused asylum. For instance, those escaping violence in northeastern India would be denied asylum because they can escape to other parts of India. In immigration law this is called the “internal flight alternative.”
Displacement caused by climate change was, until recently, outside the purview of refugee law, because climate-related disasters were confined to specific regions. But as climate change worsens, disasters have come to transcend localized areas and now affect entire nations. To illustrate this point, migrant and climate advocates have turned their attention to low-lying island countries in their arguments advocating for the expansion of refugee law. For instance, in places such as Tuvalu and the Maldives, the highest point is only a few meters above sea level. As sea levels rise, these countries are facing an alarming future — they could disappear from maps within our lifetimes. Unfortunately, the present refugee law framework doesn’t allow those fleeing these climate-induced challenges to seek asylum, even though their lives are just as at risk as those who flee persecution.
Dramatic predictions of countries submerged by rising sea levels serve as powerful tools to emphasize the urgency of extending refugee law. But in focusing on the worst scenarios, advocates have lost sight of climate change’s more subtle impacts. In particular, the economic impacts of climate change on migration are often ignored.
The United Nations projects that 143 million people will be displaced through “slow onset” impacts of climate change by 2050. While many people will flee due to sudden fires and flooding, others will flee because it will become impossible to maintain their economic livelihood. These processes will be gradual rather than sudden, subtle rather than totalizing. Prior to the submersion of low-lying countries, there will be economic repercussions, such as job losses due to capital flight and the collapse of agriculture resulting from saltwater intrusion that damages crops. The result will be the same: people’s lives will be threatened. Nevertheless, so long as a “climate refugee” is understood only as someone who is directly impacted by the sudden effects of climate change, those experiencing the gradual but life-threatening economic effects will be denied protection.
The problems with ignoring the economic impacts of climate change are seen in one of the most famous climate refugee cases, Ioane Teitiota v. The Chief Executive of the Ministry of Business, Innovation and Employment in New Zealand. Teitiota was from Kiribati and had overstayed his visa. Him, his wife, and his three children were facing deportation. In response, he decided to claim refugee status, because his family was threatened by rising sea levels and poor economic conditions. Teitiota’s house in Kiribati was destroyed, and saltwater intrusion meant that he could no longer support his family through agriculture.
The High Court — whose decision was upheld in a short Supreme Court ruling — denied Teitiota’s claim, since refugee law does not protect people fleeing climate change. Interestingly, the court also considered Article 6 of the International Covenant on Civil and Political Rights, which prohibits states from deporting people whose lives would be at risk. Although Teitiota’s home was destroyed and he was unemployed due to climate change, the court dismissed his appeal under Article 6, reasoning that he could relocate to other places within Kiribati.
Yes, it was true that Teitiota could find safety elsewhere in Kiribati. But for how long? According to current projections, most of Kiribati will be underwater by 2050. Prior to this looming crisis, the citizens of Kiribati will grapple with deepening poverty due to climate change–induced overcrowding and diminishing job prospects. While Teitiota and his family might not be in immediate peril, the shadow of untimely death looms over them — a scenario that international law, notably Article 6, seeks to safeguard against. Yet, because refugee law’s Cold War legacy lives on, the court refused to recognize life-threatening economic impacts. Even the United Nations Human Rights Committee upheld the decision.
Thus, even if those fleeing climate change were afforded refugee status, Teitiota’s claim would have still failed, due to his experience being categorized as merely the “initial” effects of climate change. The situation is akin to Teitiota being returned to a sinking vessel, where his plea for rescue would only be considered once the boat had submerged. By the time he could make a claim, it would already be far too late.
A Call for Action
New Zealand is hardly an outlier. Germany is subject to the European Convention on Human Rights, which prohibits “inhuman or degrading treatment,” including in deportations. The risk must be “real,” but does not have to be “certain.” Under law, anyone who is under a real risk from inhuman or degrading treatment from climate change should be protected. However, when a severe drought struck Afghanistan in 2018, German courts nevertheless permitted deportations. Once again, the “real” possibility of being poor and starving was not considered serious enough.
These cases show that unless there is outright devastation directly impacting a claimant, protection is denied. Whenever issues of climate-induced poverty occur, courts refuse protection — even when the law protects the life of the claimant.
Even if protection was extended to climate migrants, we would face the same problem: those fleeing the direct impacts of climate change would be eligible for asylum, while those escaping poverty caused by or exacerbated by climate change would effectively face fatal outcomes upon deportation. For this reason, we must recognize climate refugees not only as those who are directly impacted, but also those who are economically impacted.
While the prospect of expanding refugee law in a climate where existing asylum protections are overlooked and xenophobia is on the rise might seem daunting, such an expansion could indeed offer greater support to those who are currently meant to be protected. Often, those fleeing disaster face denial of asylum — they are accused of seeking economic opportunity and not being “actual” refugees. If refugee law was expanded to include those fleeing poverty, then this argument would be moot. In addition, while xenophobia is indeed growing, concern for climate change is also intensifying, potentially fostering greater empathy for those seeking refuge and acting as a counterforce against xenophobia.
Our priority should be to enhance protection for those facing life-threatening circumstances. The current framework of refugee protections traces back to the Cold War era, when capitalist states deliberately excluded those fleeing economic struggles from refuge. If this artificial distinction was bad then, it is only getting worse as those fleeing climate change fall outside refugee law. If we are going to help those fleeing climate change, we must ensure that this protection extends to all those who are imperiled, including those who are “merely” suffering economic impacts.