by Leeja Miller
The term “climate refugee” has been used frequently in the media and elsewhere to refer to the growing number of people being displaced by rising sea levels, land degradation, and large-scale natural disasters due to climate change. The legal protections afforded to these displaced people are murky, however, and international legal definitions of who is considered a “refugee” leave those displaced by the effects of climate change largely without remedy. Developments in national and international jurisprudence and adaptive interpretations of international treaties may, however, mark the beginning stages of an international movement towards recognizing and granting legal protections to climate refugees.
New Zealand: A Case Study
Kiribati is a country made up of a series of small islands, the tallest of which raises to four meters above sea level at most. It is projected that Kiribati, home to over 100,000 residents, will be fully under water by 2050. In 2007, a man named Ioane Teitiota migrated from Kiribati to New Zealand with his wife in an effort to avoid increased violence and upheaval due to the shrinking availability of land, fresh drinking water, food, and increasing instances of natural disasters. In 2013, after being threatened with deportation, Teitiota sought refugee status in order to remain in New Zealand. He claimed that he was a “climate refugee” and that he could not return to his island for fear of imminent danger due to climate change. The New Zealand immigration tribunal, the Court of Appeal of New Zealand, and the Supreme Court of New Zealand all rejected his claim, ultimately deporting him in 2015. The main reasoning for their rejection of his claim: there is simply not a basis in international law for seeking refuge from the environment and the immediacy of the threat is too remote. The decision penned by the New Zealand Immigration and Protection Tribunal, while ultimately rejecting Teitiota’s claim, provides helpful insight into the potential future of legal protections for people displaced by climate change.
Current International Refugee Law
The basis of current refugee law is found in the 1951 Convention Relating to the Status of Refugees (“Refugee Convention”). The Refugee Convention states:
The term “refugee” shall apply to any person who: . . .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.
The main issues regarding climate refugee status lie in defining the term “persecution” within the meaning of the Refugee Convention, as well as the convention’s focus on discrimination perpetrated principally by a state or a non-state actor.
In situations where climate change-induced rising sea levels are threatening the livelihoods and lands of a group of people like in Kiribati, it is difficult to tie this threat to “persecution” under the traditional legal definition of the word. The New Zealand tribunal defines persecution as “the sustained or systemic violation of core human rights, demonstrative of a failure of state protection.” Again, a state actor is central to this legal definition. The court defines a “well-founded persecution,” pursuant to the Refugee Convention definition, “when there is a real, as opposed to a remote or speculative, chance of it occurring. The standard is entirely objective.”
This creates a high bar above which those seeking refuge from climate change must show that some actor will persecute them if they return to their country. Environmental threats simply do not fall within this rigid framework. Often, even though scientific models widely predict rising sea levels and increased threats to coastal areas and islands like Kiribati, the threat is simply not imminent enough to fit within the confines of the Refugee Convention. Because of these technicalities, a person like Teitiota seeking refugee status will find no recourse in international law as it stands unless they are able to show that a state actor blatantly eroded the environment such that it has created a real and imminent threat to their safety. Even then, they may not qualify as a refugee under the definition given in the Refugee Convention.
International Human Rights Remedies
Certain international human rights commissions have begun interpreting those rights guaranteed by “traditional” human rights frameworks—such as the right to life, the right to health, the right to an adequate standard of living, etc.—to be inherently linked to the protection of the environment. For example, the UN Human Rights Council recognizes a right to sustainable development and protection of the environment and has identified linkages between human rights and environmental degradation.
The Commission on the Elimination of All Forms of Discrimination Against Women (“The CEDAW Commission”) has recognized that drought, natural disasters, and natural resource scarcity all impede the implementation of rights guaranteed under the convention. Therefore, the CEDAW Commission has found that state signatories to the convention have a duty to protect the rights guaranteed by the convention in part by protecting the environment. When the environment is degraded such that the rights guaranteed by the convention are infringed upon, then the injured parties have the right to a just remedy.
This general move towards recognizing the inherent connection between human rights violations and environmental degradation, while by no means sufficient for the looming crisis at hand in Kiribati and other island nations, shows that a promising trend is slowly emerging in international law towards a recognition that climate change is and will continue to be a very real threat to human rights.
In order to address the threat to the human rights in countries like Kiribati, individual countries may need to start expanding refugee definitions of their own volition. Last year, the Prime Minister of New Zealand proposed an expansion of refugee visas to those who seek refuge due to climate change, the first time a country has ever recognized the possibility of legally cognizable “climate refugees.” 
Alternatively, the international definition of what it means to be a refugee will have to be reworked. Without forward-thinking frameworks in place to address the issue of displacement due to climate change, we are guaranteeing the extensive infringement upon the human rights of vast swaths of people in already vulnerable situations. The international community cannot sit back and wait for that to happen.
 AF (Kiribati)  NZIPT 800413 (25 June 2013), para. 5, http://www.nzlii.org/nz/cases/NZIPT/2013/800413.html</a. [Hereinafter referred to as Tribunal Case].
 Rana Balesh, Submerging Islands: Tuvalu and Kiribati as Case Studies Illustrating the Need for a Climate Refugee Treaty, 5 Barry U. Envtl. & Earth L.J. 78, 80 (2015).
 Id. at 87.
 See Tribunal Case infra note 1.
 UN General Assembly, Convention Relating to the Status of Refugees, Art. 1A(2), 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: http://www.refworld.org/docid/3be01b964.html [accessed 18 July 2018].
 Tribunal Case, para. 53.
 Office of the United Nations High Commissioner for Human Rights, Individual Report on the United Nations Convention on the Elimination of All Forms of Discrimination against Women, United Nations (2013), para. 15.
 Id. at para. 18-19.
 Rick Noack, A Proposal in New Zealand Could Trigger the Era of “Climate Change Refugees,” The Washington Post (Oct. 31, 2017), https://www.washingtonpost.com/news/worldviews/wp/2017/10/31/a-proposal-in-new-zealand-could-trigger-the-era-of-climate-change-refugees/?utm_term=.612aac90714b.
Leeja Miller is currently taking the course ‘Human rights, the Environment, Development and Community Resilience’ this quarter with Professor Brownell.