Climate change and forced displacement: a case for refugee status

Introduction

Climate related displacement and migration is becoming a great challenge of our era. In 2022, climate-related disasters triggered more than half of all new reported displacements.¹ It is estimated that by 2050, approximately 200 million people will be at risk of being forcibly displaced by desertification, rising sea levels, and extreme weather conditions.²

While adverse climate has a significant impact on the displacement of people around the world, the concept of a refugee as a result of the impacts of climate change has not historically existed under international refugee law. International law protects those fleeing war and conflict who face persecution for grounds of race, religion, nationality, membership in a particular social group, or political opinion.

In this article, we explore:

• what is forced displacement, and the increasing number of people being forcibly displaced as a result of climate related disasters;   
• the international law of refugees and the case for humanitarian protection; and
• other ways governments are providing protection to people forcibly displaced as a result of climate change, with a focus on the Australian context. 

What is forced displacement? What is climate related displacement?

Displacement is the movement of people who are forced to leave their homes or home region in order to avoid the effects of events or situations beyond their control, such as armed conflict, violence, human rights abuses, natural or man-made disasters. Climate related displacement refers to the forced displacement of people either as a result of sudden natural disasters or the accumulative adverse effects of climate change.³

In 2024, there were over 150 climate-related disasters around the world. For example, rising temperatures and record-breaking heatwaves hit much of Europe resulting in wildfires and flash floods; China, the Philippines and Vietnam (to name a few) saw typhoons impacting millions; the United States experienced multiple hurricanes causing extreme rainfall and flooding; parts of Afghanistan, Pakistan and Iran suffered abnormal cold and snow events resulting in several floods; and Africa experienced both significant flood and drought events.⁴

The climate crisis is amplifying and driving displacement, with more people now forcibly displaced due to the impacts of climate change than armed conflict. In the past 10 years, severe weather-related disasters have caused 220 million internal displacements, equivalent to approximately 60,000 displacements per day,⁵ due to destruction of homes, critical infrastructure, forests, farmland, and biodiversity.

Climate related events have been described by the United Nations Human Rights Commission (UNHCR) as a ‘threat multiplier’, because they magnify the impact of other factors that contribute to displacement such as poverty, rising domestic food prices, food insecurity, loss of livelihoods, and tensions relating to dwindling resources, ultimately creating conditions that lead to further forced displacement.

International law

International refugee law has not historically provided specific protections for refugees who migrate as a result of the impacts of climate-related disasters. The 1951 Refugee Convention (the Convention) applies refugee status to those who have a well-founded fear of persecution on the basis of race, religion, nationality, or membership of a particular social group or political opinion.⁶ Similarly, courts around the world have historically confirmed a person cannot be a refugee as a result of climate-related disasters. For example, nearly 30 years ago the High Court of Australia remarked that people fleeing “natural disaster”⁷ or “natural catastrophes”⁸ could not be refugees. Similarly, the Supreme Court of Canada found “victims of natural disasters” could not be refugees “even when the home state is unable to provide assistance”.

While displacement due to climate change or disaster is not an explicit basis for refugee status, the adverse effects of climate change may exacerbate existing social and economic inequalities. Climate change and natural disasters may limit one’s access to and control over land, individual rights, and natural resources, which may subsequently threaten one’s right to an adequate standard of living, self-determination, and development.⁹

In light of this, policy makers are under increasing pressure to consider whether those displaced as a result of the climate-fueled crises are entitled to protection under international law. While no country has taken the step to make a specific ruling on this, the concept of a refugee on the basis of climate change is getting some traction.

The recently released Practical Toolkit: International protection for people displaced across borders in the context of climate change and disasters,¹⁰ provides guidance on how climate change and disasters can factually underpin claims for international protection under existing legal frameworks. In short, the Toolkit looks at a new approach for applying the Convention as follows:

1. Risk of harm: as detailed above, climate change amplifies the serious risk of harm by intersection with other social, political and economic factors.
2. Persecution: under the Convention, persecution is understood to be a human act or omission. In the context of climate change, this may be, for example, where certain groups are denied lifesaving relief following a disaster or a government’s failure to act appropriately to avoid or respond to a disaster.
3. Well-founded fear: consider whether there is a reasonably foreseeable chance the disaster will occur, creating a genuine fear for the displaced person/s.
4. State protection: is the State unable or unwilling to provide protection to those forcibly displaced, for example, due to limited resources, causing the need for international protection.

Another avenue for protection under the Convention is through the implied principle of non-refoulement, which prohibits a country from deporting or returning a person to a country where their life or freedom would be threatened. The principle applies to all migrants, irrespective of their migration status.

In the landmark 2019 case of Teitiota v New Zealand,¹¹  the applicant argued that he could not be deported to his home country because of the non-refoulement principle and that the right to life under article 6 of the International Covenant on Civil and Political Rights (ICCPR) should be a basis for providing protection to those displaced by climate change or disasters. In this case, Teitiota was from Kiribati, a South Pacific Island that was at risk of losing land due to climate-related rising sea levels. He applied for refugee status with the New Zealand government, but his application was rejected, and he was repatriated to Kiribati. He took the case to the UNHRC which upheld the Government’s decision. While the applicant was unsuccessful, the UNHCR commented that effects of climate change may expose individuals to a violation of their rights under articles 6 or 7 of the ICCPR. They stated that “given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized.”

The finding is pivotal as it may open the door to claims for protection status, as the risk of serious climate-related harm may amount to a violation of one’s right to life, thus triggering the principle of non-refoulement.

Australian context

Australia is a signatory to the Convention and all migration to Australia is governed by the Migration Act 1958 (Cth) (the Act). The Act incorporates article 1A(2) of the Convention, giving effect to Australia’s obligation of non-refoulement. Section 36(2) of the Act provides for the grant of a protection visa to a non-citizen who meets the protection obligations under the Convention.

In Australia, people displaced by the impacts of climate change and natural disasters are not generally found to be refugees. Numerous applications have been made to Australian courts and tribunals by people seeking refugee protections due to the impacts of natural disasters and climate change.¹² As noted previously, these claims, spanning across nearly 30 years, have all been rejected.¹³

Despite this, in recent years there has been acknowledgment of the need to provide regional support to people displaced as result of the impacts of climate change. In a first of its kind agreement, the Australian and Tuvalu Governments signed the Australia-Tuvalu Falepili Union Treaty (the Treaty). The Treaty is a bilateral agreement signed on 9 November 2023 by Prime Minister Albanese and the then Tuvaluan Prime Minister Natanoon, which entered into force on 28 August 2024.¹⁴ It was established as a result of the Australian Government’s acknowledgment that by 2050 an estimated half of the land area of Tuvalu’s capital city will be flooded by tidal waters daily. The purpose of the Treaty is to establish a “special human mobility pathway” for citizens of Tuvalu to live, work, and study in Australia and access Australian education, health, and key income and family support on arrival¹⁵ under the Pacific Engagement Visa.

In addition, the Australian Government has specific visa allocations under the Pacific Engagement Visa to people escaping their home country as a result of the impacts of climate change including for the Federated States of Micronesia, Fiji, Nauru, Palau, Papua New Guinea, Solomon Islands, Timor-Leste, Tonga and Vanuatu.

While this visa program does not fall within the category of humanitarian protection and therefore does not specifically recognise individuals as refugees, it may indicate a shift towards countries, such as Australia, providing migration pathways to respond to the impacts of climate change within their region.

Conclusion

Climate related disasters are occurring around the world, and the number of people being forcibly displaced as a result of these disasters will continue to grow. Although the concept is starting to get traction, there is still a long way to go to ensure adequate protection and refugee status to those forcibly displaced due to climate change and climate induced disasters. Legal practitioners need to be alive to these issues as we see more challenges to the traditional definition of a refugee and more applications for claims as a result of climate change.