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Abstract

Climate change has rapidly intensified its devastating impact, particularly on Small Island Developing States (SIDS) such as Vanuatu and Kiribati, which face the imminent threat of rising sea levels and potential submersion of their territories. This existential threat presents an unprecedented legal and humanitarian crisis for the affected populations, who are at risk of displacement and statelessness. While the complete immersion of state territory might seem to imply state extinction and automatic statelessness for its citizens, this assumption is legally contested. Prevailing legal arguments suggest that statehood could persist even without physical territory, especially due to widespread international recognition and continued governmental functionality of these states. Therefore, submerged state citizens might not automatically become stateless but would still be displaced and in urgent need of legal protection as climate refugees. This research delves into the critical urgency surrounding this crisis, emphasizing the significant gaps in existing international legal frameworks that fail to offer explicit protection for those impacted by sinking states. It further examines how an International Court of Justice (ICJ) Advisory Opinion could crucially shape future actions, establishing legal obligations to recognize, protect, and preserve the rights of these vulnerable, displaced populations beyond traditional territorial, political, and legal borders. The analysis draws upon international human rights law, customary law, environmental law, and theories of deterritorialized statehood to explore these complex issues.

A primary challenge in addressing this crisis lies in the ambiguous definition and legal invisibility of "climate refugees." Broadly, a "climate refugee" refers to individuals forced to leave their homes due to the environmental effects of climate change, characterized by displacement in response to long-term trends where a return to previous environmental conditions is unlikely. This encompasses populations displaced by rising sea levels, natural disasters, droughts, and other forms of environmental degradation. Nations most susceptible to mass displacement include those in Melanesia, Micronesia, and Polynesia. Crucially, the term "climate refugee" remains unrecognized under international law. The United Nations High Commissioner for Refugees (UNHCR) explicitly states that individuals fleeing environmental degradation are not considered refugees under the 1951 Refugee Convention unless they also face persecution based on race, religion, nationality, social group, or political opinion. This leaves climate-displaced populations in a profound legal void, unrecognized by international law, and consequently, without entitlement to asylum, resettlement programs, or essential protection, even in life-threatening conditions.

Despite this pervasive legal vacuum, the 2020 decision of the UN Human Rights Committee in Teitiota v. New Zealand offered a glimmer of hope. The Committee ruled that the principle of non-refoulement—which prohibits sending individuals back to areas where their life or freedom would be at risk—could potentially apply to climate change-displaced individuals. While not granting automatic refugee status, the decision established that states cannot return people to circumstances where climate change effects, such as rising sea levels or scarce resources, render life impossible. This ruling underscores the significant role domestic legal systems play in providing protection in the absence of a fixed international "climate refugee" status.

However, broader international legal frameworks still demonstrate weaknesses and gaps. The 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness fail to acknowledge climate refugees, particularly concerning the validity of nationality when a state loses its functionality or stability criteria, as outlined in the 1933 Montevideo Convention. The Montevideo Convention's criteria for statehood—a defined territory, permanent population, representative government, and the capacity to enter into relations with other states—pose a significant risk to the legal personality of states that lose territory due to climate change. Both Vanuatu and Germany have urged the ICJ to interpret statehood criteria dynamically, arguing that the extinction of statehood due to climate change would violate fundamental human rights and that international law must evolve to ensure the "sovereign equality" of drowning states.

Furthermore, soft law and human rights frameworks currently fall short. Although the UNHCR acknowledges that climate-displaced persons fall outside the traditional refugee definition and advocates for alternative protection pathways, these proposals lack binding force and robust enforcement mechanisms, rendering them aspirational and often ineffective. The scale of displacement is staggering: the Internal Displacement Monitoring Centre (IDMC) reported 28.3 million people displaced by weather-related disasters in 2024, and the World Bank projects over 216 million people could be displaced across six regions by 2050. Despite these urgent figures, no official international convention or mechanism exists to protect these vulnerable populations.

Real-world case studies illustrate the inadequacy of current responses.

• In the Pacific, low-lying SIDS like Tuvalu and Kiribati are experiencing critical impacts, including rising sea levels contaminating freshwater supplies and submerging communities. While Kiribati acquired land in Fiji as a contingency, it did not provide clear legal status for citizens who might relocate. The 2023 Australia-Tuvalu Falepili Union Treaty allows for gradual relocation of Tuvaluans to Australia with a special visa, preserving Tuvalu's heritage, but this bilateral agreement is highly dependent on host state willingness and cannot serve as a global solution for large-scale displacement.

• In Latin America, Chile and Brazil have implemented special visa programs for Haitians displaced by climate change, offering limited legal recognition. The Platform on Disaster Displacement (PDD), a state-led initiative, has recommended cross-border temporary protection for individuals fleeing disasters, but these guidelines are also non-binding.

Across these cases, a common thread is that climate-displaced populations remain outside the established refugee protection systems, facing uncertainty regarding asylum, social services, and even basic human rights. The lack of proper enforcement and implementation renders many existing mechanisms ineffective.

John R. Campbell's migration framework contextualizes displacement as a spectrum, ranging from voluntary to forced migration, driven by factors like atoll submersion, salinization, drought, resource scarcity, and environmental extremes. This spectrum illustrates how SIDS populations respond through temporary relocation, internal migration, or permanent displacement. However, current international legal frameworks fail to recognize these crucial distinctions or displacements at all, leaving the needs of these populations unmet.

To bridge this legal invisibility and move from recognition to rights, two primary, albeit "vague," strategies have been proposed. One involves revisiting and amending the 1951 Refugee Convention to include climate refugees. However, this approach would be protracted, requiring the approval of states, many of whom are resistant to expanding asylum systems to a new category of claimants. The second, more advocated pathway by legal scholars like Jane McAdam and Maxine Burkett, is the creation of a new legal instrument, such as a dedicated treaty or protocol, specifically applicable to climate-displaced persons. Such an instrument would recognize this new category of refugees and guarantee legal protection, including mobility rights, residence, and nationality preservation. Regional mechanisms like the Cartagena Declaration or humanitarian visas could offer temporary solutions but need adaptation and strengthening, especially as climate refugee numbers are projected to increase significantly by 2050. Similarly, the Nansen Initiative explores policy responses to cross-border disaster displacement but lacks binding authority. The American Convention on Human Rights (ACHR) could also be a relevant instrument, prohibiting collective expulsion (Article 22(8)) and ensuring humane treatment (Article 5), thereby preventing returns to inhumane conditions. The Inter-American Court of Human Rights (IACtHR) progressively interpreted these articles in its 2024 advisory opinion, requested by Colombia and Chile, underscoring states' obligation to prevent cross-border displacement from climate harm and citing Teitiota v. New Zealand to argue for ACHR protections for climate migrants. Brazil's submission to the IACtHR argued that climate change displacement creates "due diligence" duties under ACHR Article 1(1). However, the application of ACHR remains "patchy," highlighting the need for a dedicated global regime.

The most authoritative measure for clarifying state obligations is widely considered to be an advisory opinion from the International Court of Justice (ICJ). Requested by the UN General Assembly, such an opinion could strengthen customary laws and human rights regarding refugee crises, clarifying duties even if non-binding. Specifically, the ICJ's Advisory Opinion (requested by the UNGA in 2023) could clarify state obligations under human rights law, affirming the non-refoulement standard from Teitiota, and under refugee law, potentially influencing the 1951 Convention. Crucially, the ICJ could also affirm the continuity of statehood for submerged nations, like the SIDS, through mechanisms such as maritime zones or "deterritorialized sovereignty". Vanuatu's 2024 submission argued that the extinction of statehood due to climate change violates the right to self-determination and demands reinterpretation of the Montevideo Convention criteria. Kiribati's 2023 oral arguments and Germany's 2024 written statements highlighted the need for the 1951 Refugee Convention to evolve to include displacement from uninhabitable environments and asserted that high-emitter states bear responsibility for cross-border displacement under the no-harm principle.

Other international tribunals have also weighed in. The International Tribunal for the Law of the Sea (ITLOS) advisory opinion of 2023 on climate obligations under UNCLOS is highly relevant, asserting maritime rights and the duty to prevent harm. Tuvalu argued that sea-level rise must not limit maritime zones, which are critical for the economic survival of relocated populations. The Marshall Islands linked states' failure to cut emissions (a UNCLOS violation) to forced migration from coastal zones.

A significant scholarly and legal debate revolves around the concept of "collective recognition" and redefining the requirement for statehood to include a new form of legal personality: "deterritorialized statehood". Legal scholars such as Rayfuse and Burkett argue that if a state can fulfill other criteria—maintaining a permanent population, a government, and the capacity to enter into relations with other states—its international status and obligations could be preserved even without terrestrial territory. Key ICJ advisory proceedings from Vanuatu and Germany in 2024 have argued that statehood cannot be solely contingent on territory when climate change forcibly displaces populations, and that international recognition and governance capacity should suffice. The Marshall Islands further emphasized in 2023 that their maritime boundaries and diplomatic relations demonstrate ongoing state functionality irrespective of land loss. While there is scholarly consensus supporting fixed maritime zones (Rayfuse) and the idea of a "nation-ex-situ" (Burkett), opposing states like Australia argue that this would "undermine sovereignty's territorial basis" and note the lack of precedent for non-territorial UN membership.

In conclusion, there are considerable gaps in the international legal frameworks that currently exist for providing recognition and protection for climate refugees. As climate change accelerates, the risk of mass displacement for populations in vulnerable states, particularly SIDS, is growing, potentially leaving millions without the possibility of asylum by 2050. Existing refugee law remains narrow, unadapted, and outdated, as does the 1933 Montevideo Convention in its definition of statehood and territory. Climate refugees represent a profound "grey area" of international law, which severely limits the aid and protection they can receive. The ineffectiveness of soft laws and the lack of enforcement mechanisms further exacerbate the crisis. Real-world cases unequivocally demonstrate the urgent need for more robust legal action by both national legislation and the international community to preserve the rights of these vulnerable populations. The path forward demands both political and legal justice, coupled with flexibility, to accommodate the unprecedented needs and challenges of the 21st century. Whether through updated protocols, a new treaty, an advisory opinion, or a reinterpretation of existing treaties, concrete actions are imperative. Granting legal justice is not a choice but a necessity, for without the most fundamental rights, the most vulnerable will remain the most invisible. The international community must act decisively before this crisis reaches a point of no return, and countless lives are tragically lost.

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