Title: The Missing Refuge for “Climate Refugees” in the International Legal Framework: A Dialogue with Caitlan M. Sussman

GJIA: Your research indicates that “climate refugees” remain excluded and unprotected within legal refugee frameworks like the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. What distinguishes climate refugees from refugees defined under global legal instruments, and why are they excluded from these frameworks?

CMS: I want to start by giving some context before I answer your question. We have heard about the impacts of climate change including rising sea levels, floods, famine, and drought. But missing from this discussion are the millions of people who have been and will be displaced by climate change and natural disasters. Scientists predict that over the next 30 years, 1.2 billion people could be displaced by climate change and natural disasters. The problem is that no legal framework currently exists to protect these people, the “climate refugees.” I would like to make clear that I am using the term “climate refugees” as a colloquial term to cover this group of climate-displaced people. However, the term is not actually recognized by any international body—and that is part of the problem. The 1951 Convention and its 1967 Protocol are the only binding global legal treaties that define refugees, their rights, and nations’ obligations to protect them. The 1951 Convention defines refugees as people who are fleeing their country of origin due to a credible fear of persecution based on race, religion, national origin, or membership in a particular political or social group. That does not cover climate refugees.

Now, what makes climate refugees different from the people who are defined under the 1951 Convention? Firstly, they are not covered at all. Because climate change can be a very generalized, slow-onset phenomenon, it can be difficult to link persecution to the effects of climate change. Secondly, climate change often displaces climate refugees internally in their own countries before they cross international borders—a phenomenon called “stepwise migration.” Scientists predict that by 2050, 200 million people could be displaced internally within their own countries. That is a large problem that the Convention does not cover as it only deals with people who have crossed international borders because of persecution. Finally, I want to make clear that climate-related displacement can happen to anyone. We have already seen people in the United States being forced to move away from low-lying coastal areas because of flooding and storms or being forced to move away from wildfire-prone areas. The most vulnerable people in society will be the most affected by the impact. So, the question becomes: What we can do to help these people? That’s what my research explores.

GJIA: Your paper indicates that the UN has recently adopted non-binding international agreements examining climate change and migration like the 2018 Global Compact on Refugees and the 2018 Compact for Safe, Orderly, and Regular Migration. Considering the non-binding nature of these compacts and lack of repercussions for noncompliance, what do you think are the largest benefits and shortcomings of these agreements?

CMS: The main benefit of these agreements is that they recognize the link between climate change and migration, which is very important. They also provide some concrete solutions such as planned relocation and visa options for climate refugees. The issue with these compacts is that they are quite limited, and the solutions are not comprehensive. As you also mentioned, the compacts are not binding, meaning that there are no repercussions if a nation decides not to comply. What we really need is a comprehensive, binding legal framework that will recognize the rights of climate refugees and nations’ responsibilities towards them. We have the 1951 Convention, but it does not cover climate refugees. If a climate refugee were to bring a claim under the existing 1951 Convention or its 1967 Protocol, their strongest claims would arise when climate change interacts with conflict and violence. For example, in the wake of a climate disaster, if a climate refugee were to be persecuted by their government or discriminated against in the provision of aid, or not given aid at all because of their membership in one of those protected groups in the 1951 Convention, such circumstances could provide the bases for the claim.

In my view, the strongest solution to protect climate refugees is to amend the 1951 Convention to define the rights of climate refugees and nations’ obligations towards them. We already have examples of how to do this from regional agreements, such as the 1984 Cartagena Declaration and the 1969 OAU Convention. The Cartagena Declaration focuses on Latin America and was signed by Latin American countries, and the OAU Convention focuses on Africa and was signed by a number of African countries. These agreements define refugees as those displaced by disturbances to public order in part or the whole of their country. The 1951 Convention does not actually cover people who are internally displaced, but this definition would. In addition, these agreements define refugees as people who are fleeing massive violations of human rights or generalized violence. If we acknowledge that climate change can violate someone’s human rights, then this definition could cover climate refugees. Expanding the definitions in the 1951 Convention and amending the Convention to broaden that definition of a refugee would help us come up with uniform terminology to define climate refugees and a legal framework to protect them.

GJIA: Your work also mentions that international environmental law and human rights law are independently insufficient to protect climate refugees. What are some effective strategies to incorporate international environmental law, human rights law, and refugee law to protect climate refugees?

CMS: There is no one single strategy to protect climate refugees. Any effective strategy will incorporate elements of international environmental law, international human rights law, and refugee law, and we are going to need to look at both domestic and international solutions together. In terms of environmental law, we have the principle of shared responsibility, which is very important. The UN framework on climate change has laid the foundation for this principle of shared responsibility. For example, the UN Framework Convention on Climate Change eventually led to the Paris Accords, which seek to limit emissions of carbon dioxide to 1.5 degrees Celsius in this century. The limitations of these frameworks are that they are non-binding. Again, there are no repercussions if a nation chooses not to comply. Policy experts have proposed a Model International Mobility Convention, which has a broader definition of a refugee and migration, proposing concrete solutions like a shared fund to protect climate-displaced people.

A stronger body of law to protect climate refugees is human rights law. Human rights law comes with the principle of non-refoulement, which means that someone should not be returned to a country where they would experience human rights violations. Now, you might ask, can the courts play a role in helping to enforce human rights that are violated by climate change? The answer is yes, but courts have been traditionally reluctant to intervene. When they do, they set very high thresholds by which someone has to prove that their rights are violated by climate change. For example, in 2020, the Human Rights Committee, a UN tribunal, heard a case brought by a climate refugee from the Pacific Island nation of Kiribati. Although the Human Rights Committee said that in general, someone could have a claim for human rights violations due to climate change, the Committee determined that this particular situation was not imminent enough to warrant protection for the climate refugee, despite the fact that the island of Kiribati is expected to disappear into the ocean in the next 10 to 15 years. This begs the question: If this level of urgency is not imminent enough, what is?

As I mentioned, the strongest way to protect climate refugees is going to be under the 1951 Convention and its 1967 Protocol, which also contain the principle of non-refoulement. We need to amend those conventions to broaden that definition of a refugee to include climate refugees. Finally, we need to look to domestic solutions in addition to these international solutions to create a comprehensive framework to protect these climate-displaced people.

GJIA: A speech made by the UN Special Rapporteur on human rights and climate change in June of 2023 echoes a solution you proposed of enacting “climate humanitarian visas.” What exactly constitutes a climate humanitarian visa, and what are the largest possible benefits and challenges in implementing this strategy?

CMS: As I discussed earlier, we need both international and domestic solutions to protect climate refugees because the former require time and input by international bodies and different nations. In the interim, these domestic solutions can be very helpful and efficient. Climate humanitarian visas refer to when nations set criteria for an individual to be protected as a climate refugee in the host nation. Then, eligible climate refugees apply for protection in that host nation and prove that they are among the most vulnerable in their particular region. The benefit of this program is that each nation can set its own criteria, and they do not have to go through an international body. The problem with the climate humanitarian visas is that there may be less uniformity in that criteria. You could have different definitions by different nations of what constitutes a climate refugee.  I also want to emphasize that climate humanitarian visas have been implemented before. For example, the government of New Zealand in 2017 enacted a climate humanitarian visa program. But unfortunately, the program was scrapped after six months. The reason was that the Pacific Islanders who it was designed to protect didn’t want the climate humanitarian visas—in fact, they saw moving from their homes as a last resort. Instead, they called on developed nations to do more to prevent the effects of climate change, so that they wouldn’t have to move. Therefore, climate humanitarian visas can only work with the cooperation of the people who are most affected by climate change. Now, it’s important to acknowledge that most people do not want to leave their homes. But in the interim, we still need solutions, like climate humanitarian visas, to protect these vulnerable people while we look to mitigate and prevent the effects of climate change itself.

GJIA: Looking ahead, how do you think the topic of climate refugees will evolve in the coming decade, and who will play important roles in the formulation of these frameworks? What will occur if these gaps in our legal migration frameworks remain unaddressed?

CMS: I want to start by discussing what could happen if these gaps remain unaddressed. When I published my paper last year, 2020 was the warmest year on record. Now, we know that 2023 was actually the warmest year on record. Climate change is getting worse. If these gaps are not addressed, we will see people being forced to migrate in the millions with no legal framework to protect them. Beyond resource scarcity, food insecurity, and conflict, these people will be stranded and susceptible to further harm with no protection. It is not just the most vulnerable people in society who are going to experience the effects of climate change, although they are going to be disproportionately affected. Everyone will be affected. Real progress on solutions to protect climate refugees will come from international collaboration and both domestic and international solutions.

Now, who are going to be the major players in developing solutions to protect climate refugees? They will be national governments, multilateral institutions, and NGOs, but also the courts and even grassroots activists like you and me. In terms of national governments, for example, the United States has amended its refugee and asylum guidelines to examine the interaction between climate change and refugee and asylum claims under existing law. This is really important. We saw that at the COP 28 climate conference in 2023, almost 200 nations came together and agreed to transition away from fossil fuels. You mentioned the Special Rapporteur on human rights and climate change—that position only came about in 2022. It was also created because of a coalition of nations, including climate-vulnerable nations like Bangladesh, working with NGOs and Indigenous activists. That is an example of how international collaboration can really work. In terms of multilateral institutions, this year or early next year, a UN tribunal — the International Court of Justice—will issue an advisory opinion clarifying the obligations and responsibilities of nations to prevent the effects of climate change for future and current generations. That opinion will not be binding but will clarify the framework around climate change, which is very significant. The advisory opinion is only coming about, again, because of a coalition of nations, including the Pacific Island nation of Vanuatu, grassroots Pacific Islander students, and NGOs. These are crucial examples of how working together can drive real change. I will end by saying that we have many of the tools that we need to protect climate refugees, but we need to work together to implement real solutions. The future is in our hands, and the time to act is now.

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Caitlan M. Sussman is an attorney and graduate of the University of Chicago Law School and Cornell University. Her research explores legal solutions at the intersection of international environmental law, international human rights law, and refugee law to protect individuals displaced in the context of climate change and natural disasters. In 2023, Sussman published an article in the Chicago Journal of International Law titled “A Global Migration Framework Under Water: How Can the International Community Protect Climate Refugees?” All opinions expressed during this interview are the author’s own and do not reflect the views of any past or present employer.

This transcript has been lightly edited for clarity and length.

Interview conducted by Ava Wong in April 2024.

Image Credit: Wisconsin Examiner