By Michel Rouleau-Dick
Despite considerable progress in understanding when and how people displaced across borders in the context of climate change and disasters may be entitled to international protection, I argue that the current legal framework gives rise to a “climate protection paradox.”
Simply put, because international protection still hinges on persecution, States whose population are at risk, or have already experienced, cross-border displacement face a contradiction. On one hand, they are bound by customary and treaty-based human rights obligations owed to their population, particularly in relation to climate change mitigation and adaptation. On the other hand, barring a specific agreement such as the 2023 Falepili Union, their nationals and habitual residents who are displaced across borders are more likely to qualify for international protection if they meet the criteria laid out in Article 1 of the 1951 Refugee Convention:
“[…] owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
In essence, forcibly displaced persons in the context of climate change and disasters may be better protected in some cases — meaning they may qualify for international protection — if their country of origin doesn’t fulfill its human rights obligations.
In this blog, I rely partly on the excellent practical toolkit on International Protection for People Displaced across Borders in the Context of Climate Change and Disasters, which details how such protection should be under the law as it currently stands, including across different regional contexts. I also rely on other relevant sources such as the Refugee Law Initiative’s Declaration on International Protection in the Context of Disasters and Climate Change and UNHCR guidance.
The practical toolkit is a major milestone towards dispelling the myth that persons displaced in the context of climate change and disasters do not qualify for international protection. Indeed, they often do, and most importantly, every case must be carefully assessed on its facts. However, while the toolkit goes a long way towards disseminating and consolidating the protection that is available, its clarity also reveals in no uncertain terms some of the contradiction(s) inherent to the current “paradigm of protection” for people displaced across borders in the context of climate change and disasters.
Namely, despite significant progress (including the applicability of non-refoulement to such displacement), it is still generally understood that natural hazards in and of themselves cannot substantiate a claim to international protection. As the practical toolkit explains in paragraph 8: “where the impacts of climate change and disasters on the ground generate or exacerbate the risk of persecution or other serious harm, those affected may be entitled to international protection.” Or, as UNHCR states even more explicitly, “natural hazards, in and of themselves, do not constitute persecution.”
Climate change impacts can therefore play an important role in creating the types of conditions under which migrants could qualify for international protection — ranging from breakdowns in public order to triggering inter-communal violence, for instance — but natural hazards themselves do not qualify as persecution for the purposes of international protection.
Again, this means that the focus of Article 1 on persecution creates an illogical situation where forcibly displaced persons in this context benefit from a better legal framework for protection if their country of origin — through various human rights violations — brings them within the scope of the refugee definition. Conversely, a country of origin that may have fulfilled its obligations would, in doing so, contribute to excluding its displaced nationals or habitual residents from international protection.
A practical illustration
Let me give a simple example to illustrate this point, focusing on the prohibition of discrimination and using two fictional applicants of similar gender, age, health, and socio-economic background — each from a different fictional State equally affected by severe, unrelenting droughts.
Applicant 1 comes from State A and is a member of an ethnic minority. State A has been a global leader in pushing for strong climate mitigation frameworks and has implemented innovative legislation and policies to protect the rights of its nationals as part of its adaptation efforts. The minority to which Applicant 1 belongs has been extensively consulted on the best course of action, and the various processes enacted by State A have been cited by different international actors as best practices.
Still, the lasting and extensive effects of the droughts have forced many of State A’s nationals, including Applicant 1, to consider and eventually opt for cross-border migration to neighbouring States. This trend is occurring across the board, and Applicant 1’s minority is equally represented among those who chose to relocate. State A unsuccessfully attempted to negotiate bilateral or multilateral relocation agreements with other States, leaving its nationals with few paths for cross-border relocation.
Applicant 2 comes from State B and is also a member of an ethnic minority. State B is a failed democracy that has consistently been criticized by the international community and civil society for its failure to uphold international standards in its feeble response to climate change. Notably, State B has unequally distributed its adaptation efforts, leaving the region populated mostly by Applicant 2’s minority at a disadvantage, unable to access as many resources and assistance as other regions of State B.
Even when members of Applicant 2’s minority relocate internally within State B, there is documented evidence that they are regularly denied the same level of help offered to others. With few options, Applicant 2 eventually leaves State B and relocates to the same host State as Applicant 1, where both apply for international protection under the 1951 Convention, to which the host State is a party without reservation.
While this is clearly a sanitized, abstract example that will not map out exactly in reality, it helps highlight the key contradiction underlying ongoing efforts to improve and clarify the coverage afforded by current legal frameworks for those displaced across borders in the context of climate change and disasters. In the example above, it is safe to say that Applicant 1’s asylum claim is comparatively less likely to be granted in comparison to Applicant 2’s, since the latter’s can more easily be framed within the scope of the current refugee definition (see UNHCR, para. 10). As things currently stand, States and their governments will eventually need to reckon with the fact that their displaced nationals or habitual residents will be better protected abroad if they can substantiate a well-founded fear of being persecuted on Convention grounds than if their State of origin has fulfilled its human rights obligations to the highest possible standard. The question of effective State protection is not new to refugee law (especially in relation to non-State actors), but it is made more salient here by the context of climate change. A return to “normalcy” may never materialise for some as we cross climate tipping point after tipping point and qualification or not for international protection could then take a different significance. Ironically, the only States for whom ensuring effective protection is likely to be a concern are those who genuinely take seriously their obligations under human rights law.
Some Caveats
A compelling counterpoint to the relevance of this paradox is that the baseline of what protection is available to begin with is practically nothing (if we go back to the early days of discussing and litigation protection for “climate refugees”). Therefore, developing a better understanding of what protection avenues are available to those displaced across borders due to climate change is a net improvement, even if it comes with paradoxes or shortcomings such as the one I highlight here. Ultimately, protection for some is better than protection for none if protection for all is not a viable option.
In reality, the practical toolkit (jointly with other scholarship on the issue) emphasises several key considerations that mitigate, to some extent, the scale of the issue identified in this blog. These include: considering the hazard-scape as a whole (paras. 30-32), assessing individual harm based on each applicant’s specific capacities and situations (paras. 33-38), and evaluating the timeframe of the risk of harm (paras. 43-48). These should be primary considerations in assessing specific cases. While they do not entirely eliminate the climate protection paradox, they significantly lower its impact on a case-by-case basis. This is also emphasised by the cumulative nature of assessing whether an applicant is “being persecuted” (RLI Declaration, para. 15).
Importantly, this limitation of international protection does not necessarily extend fully to regional protection frameworks. Notably, the regional definitions set out in the 1969 OAU Refugee Convention (Article 1.2) and the 1984 Cartagena Declaration include provisions that do not hinge exclusively on persecution as a criteria for protection and thus show that this is far from an unsolvable quandary. The last caveat I would add is that human involvement in the frequency or occurrence of natural hazards may bring the case of an applicant within the scope of international protection. Such examples include the effects of mining or logging, and it may be that fossil fuel exploration and exploitation could eventually be included following the landmark Advisory Opinion (para. 427) that the International Court of Justice issued in July 2025.
A Symptom of Something Deeper?
This catch-22 situation facing countries grappling with the effects of climate change is symptomatic of deeply rooted issues in migration law. Decades of watering-down, backsliding, and barely paying lip-service to what are already basic minimums has stretched international migration thin, leaving it in dire need of updating to adequately approach a climate-changed future. Fundamentally, this specific paradox also exposes the inadequacy of “persecution” as a decisive factor in assessing claims for international protection — not only in the context of climate change and disasters, but also for those fleeing “failed” States, for example.
Recognizing environmental degradation or climate change impacts as grounds for international protection, or simply following the framing of the regional instruments identified above, could help ensure that States striving to fulfill their international human rights obligations do not limit their displaced nationals’ access to protection abroad. Unfortunately, this is unlikely to materialise, and the absurdity of the current situation will most likely persist. If anything, as international courts face increasing pressure to legitimise practices of dubious legality, such as pushbacks and the increasing use of automated decision-making, we will probably witness the emergence of more of these contradictions.
Where there is hope, it comes from systematic efforts to reinforce and consolidate existing avenues to protection, such as the practical toolkit, and from constructive efforts to set out a better path, including the Kaldor Centre Principles on Climate Mobility. Institutional efforts such as upcoming negotiations on the adoption of a Convention on the Protection of Persons in the Event of Disasters may also yield much-needed progress, but it should be clear now more than ever that the current international framework for refugee protection is in dire need of change. As migration expert Guita G. Hourani suggests, “[a] revised framework should ask whether a state can guarantee rights and protection — not merely whether an individual can identify a specific persecutor.”
Michel Rouleau-Dick is a postdoctoral fellow at the Centre for Transdisciplinary AI and Arctic 6 fellow at Umeå University, with affiliations to the Department of Law, UmArts and the School of Architecture. His research interests include public international law in times of change, emerging technologies, digital statehood and the law on statelessness.
The author thanks Dr Stephen Phillips, Dr Tamara Wood and Isak Nilsson for their comments on earlier versions of this piece
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