Climate Migration and Existing Law: Protection and International Cooperation
- UNT Dallas College of Law
- 1 day ago
- 10 min read
Rebecca Warren*
Professor of Practice, Academic Success and Bar Readiness, UNT Dallas College of Law
ISSUE 18 | FALL 2025 | IMMIGRATION |
Many of us are familiar with the devastating effects of natural disasters, which force people to leave their homes to survive. In some cases, events such as wildfires or tornadoes ultimately destroy the person’s home, and they must relocate. Fortunately, in the United States, we have governmental and non-profit programs to assist and, in many cases, insurance to rebuild. While affected individuals must temporarily seek refuge, they ultimately find themselves safe and secure in a place they can call their own.
Something similar is happening now in many parts of the globe, but it is not a fast, short-lived natural disaster. Instead, as global temperatures and sea levels rise,¹ people living along coastlines and on low-lying islands are at greater risk of losing not only their homes but also their entire communities and, in some cases, their entire countries.²
For example, the low-lying Pacific islands of Kiribati, Tuvalu, and Fiji are experiencing increasingly frequent and severe seawater flooding due to rising sea levels.³ This saltwater intrusion compromises agriculture, drinking water, and destroys homes.⁴ Seawater flooding displaces people and increases social and economic challenges.⁵ In Fiji, government officials have relocated six villages to higher ground and are planning to relocate more.⁶ In the meantime, the island nation of Kiribati has been preparing for the possibility of relocation for some time, potentially to Fiji, where it has purchased 6,000 acres of land as a potential refuge.⁷
After the first person from the Marshall Islands—another low-lying island nation threatened by rising sea levels—moved to Arkansas in the 1980s for educational purposes, more than 12,000 Marshallese have followed.⁸ Recent migrants report that their country’s vulnerability to climate change prompted them to move.⁹ Such migrants are often described as “climate refugees.”
Marshallese migration to the U.S. is permitted under the Compact of Free Association, which was established after the Marshall Islands chose self-government rather than U.S. Territory status at the end of the U.S. Trusteeship following World War II.¹⁰ Marshallese migrants to the U.S. are not legally considered “refugees,” however, and maintain non-immigrant status throughout their residency.¹¹ Their freedom to travel and reside in the U.S. is rooted in the Marshall Islands’ strategic location in the Pacific, the presence of U.S. military facilities there, and as a partial remedy for the after-effects of irradiation from U.S. nuclear testing.¹²
Migration to the U.S. from countries that lack free association is complex. Yet the homelands of many groups are equally vulnerable to the effects of rising sea levels and the increasing frequency and intensity of extreme weather events associated with global warming. Their survival depends on their ability to migrate and find refuge. They cannot, however, be considered refugees. They are the forgotten victims.
What is a Refugee?
Refugees enjoy certain benefits, such as international protection, provided by law. Legally, the definition under the United Nations 1951 Refugee Convention—which forms the basis for international asylum and refugee law—and the U.S. Immigration and Nationality Act (INA) is a restrictive one.¹³ Under U.S. and International Law, a refugee is a person who fears being mistreated because of their race, nationality, religion, political beliefs, or membership in a particular social group.¹⁴ The government must be unable or unwilling to provide protection.
More broadly, however, and in the colloquial use of the term, a refugee is defined as a “person who flees for refuge or safety, especially to a foreign country.”¹⁵ Currently, people seeking refuge from environmental disasters cannot legally be considered refugees due to the narrow language of the law. The status of “climate migrants” or environmental “refugees” (in the colloquial usage of the term) is that of any other person who desires to move to another country for any reason. They appear to have freely chosen to migrate, although they are, in fact, unable to maintain a way of life in their increasingly uninhabitable homeland.
Refugee status comes with certain benefits. For example, a refugee in the U.S. can typically qualify for a green card after one year and then apply for citizenship after five years.¹⁶ This is in stark contrast to Marshallese migrants, who are not provided a path to citizenship through the Free Association Agreement.¹⁷ Refugees can legally work in the U.S. immediately upon arrival.
It should also be noted that uninhabitable lands are not limited to low-lying islands flooded with seawater. Changing weather patterns, extreme weather events, desertification, flooding, and famine are occurring with increasing frequency worldwide. The effects on human health are significant, and climate migrants may desire to leave because of chronic heat exhaustion, respiratory issues, or mental health crises stemming from chronic stress and concern about their region becoming uninhabitable for their children.¹⁸
Should Refugee Law be Expanded to Include Climate Migrants?
International Law separates “refugees” and “migrants” based on whether the individual leaves their home country due to persecution. For example, a person who leaves their home country because of civil war or political upheaval may qualify as a refugee because they are persecuted for their political beliefs.¹⁹ Additionally, people threatened by genocide may be refugees based on their race.
Climate migrants, however, are not “persecuted” in the legal sense. One court in New Zealand, which also bases its asylum and refugee law on the United Nations 1951 Convention on Refugees, rejected an argument that a migrant from Kiribati, Ioane Teitiota, was a victim of “passive persecution” due to the devastating effects of climate change and should thus qualify as a refugee in the legal sense.²⁰ While the court agreed that Kiribati was a serious risk due to climate change, the judge noted that Teitiota’s arguments were too “novel and optimistic.”²¹
One argument in support of the idea of “passive persecution” is that the low-lying Pacific islands that are most vulnerable to sea level rise and other effects of climate change are historically the lowest greenhouse gas emitters and therefore hold no blame for any climate change driven by human action (“anthropogenic” climate change).
In contrast, industrialized, wealthy, and powerful countries, like the U.S., have relied on fossil fuels for their development and growth, thereby accounting for the vast majority of greenhouse gas emissions that drive global warming. As such, they share the bulk of responsibility for addressing the crisis. The principle of “proportionate responsibility” proposes that the burden of climate change mitigation and adaptation (and, by extension, migration) should be based on the level of contribution to the problem.²²
From a climate migrant’s perspective, because countries like the low-lying islands in the Pacific were not responsible for emissions, the individuals who now need to flee are therefore “passively persecuted” by the disproportionately accountable countries. Many organizations in the international human rights community agree with this argument. The findings of climate change scientists tend to support the argument.
However, expanding refugee law to include climate migrants would overturn decades of legal precedent stemming from the 1951 Refugee Convention. Creating a new category of “climate refugee” would also “open the floodgates,” as there are already more than 30 million displaced persons from weather-related events annually.²³ Some projections indicate that the number of climate migrants by 2050 is likely to exceed 1 billion.²⁴ For these reasons, many argue that current refugee law should not be expanded.
What are Possible Solutions?
What is an alternative to “refugee” status that would uphold the human rights of those most vulnerable to the effects of climate change? One possibility is the creation and adoption of a new climate migrant system under the United Nations Framework Convention on Climate Change (UNFCCC), the global treaty that coordinates international responses to climate change.²⁵
Some movement toward a new system is evident. For example, the United Nations High Commissioner for Refugees (UNHCR) established an Advisory Group on Climate Change and Human Mobility in 2015.²⁶ International human rights and climate change scholar Sumudu Atapattu notes that the UNHCR has helped victims of disasters despite circumstances falling outside its mandate.²⁷ There has been significant development for persons who are displaced but remain in their home country. However, a framework for those whose entire country is becoming uninhabitable has been slow to develop.
The European Parliament has recently addressed the challenge of “climate refugees” (first defined as “environmental refugees” by the United Nations Environment Programme in 1985) and affirmed that a “protection gap” does exist.²⁸ In their 2023 report on climate refugees, the authors highlight several judicial cases that demonstrate a possibility for recognition to manifest through litigation.²⁹ For example, the governments of the Netherlands and Ireland changed greenhouse gas emission standards after the court ruled in favor of the plaintiff in their first tort climate cases.³⁰ Indeed, some international scholars have suggested the creation of an international court to hear cases regarding climate change migration.
In 2022, the UN Climate Change Conference of the Parties (COP27) formally acknowledged that forced displacement due to climate change constituted a form of “loss” and launched the Climate Mobility Pavilion, a forum dedicated to discussing policy solutions for climate mobility and displacement.³¹
Much of the world acknowledges that climate displacement is growing and will continue to accelerate, making a collaborative response imperative. The most obvious proposed solution is to mitigate the problem before it worsens, assuming it is not too late, by dramatically reducing greenhouse gas emissions from fossil fuels, thereby slowing the rate of global warming.³²
What About the United States?
Assuming the scientific findings and model projections are reliable and accurate, residents of the U.S. will likewise face more extreme weather events of increasing frequency and severity.³³ Increased flooding, droughts, tornadoes, and other extreme weather events are becoming more common. However, geographic diversity and the Privileges and Immunities Clause of Article IV of the U.S. Constitution allow for internal migration to preferable locations and conditions.³⁴ U.S. citizens are unlikely to become invisible victims in the near future.
However, as international frameworks for climate migration gain traction, there is likely to be an increasing need for the U.S. to accept migrants under some category, whether as refugees or otherwise. It is also possible that the international community will expect the U.S. to willingly accept climate refugees (in the colloquial sense) because of our historically high greenhouse gas emissions, which began with the Industrial Revolution.³⁵
Many international climate change policymakers and scholars support the provisions of the Paris Agreement that require member states to make contributions to funds earmarked for climate change adaptation (often referred to as the “loss and damage fund”).³⁶ Contributions from the United States and other wealthy countries have been used for various projects, such as building sea walls.³⁷ Whether this will continue in the future is unknown.
It is also uncertain whether the U.S. will join in treaties designed to protect climate refugees. At the core of the crisis and any future action is whether, and to what degree, the U.S. will acknowledge climate change as a driving force behind migration, and how the U.S. values the human rights of those who must flee their homeland to provide a future for their children. The historical provisions for Marshallese migrants reveal that the U.S. is willing to offer a remedy when its actions contribute to environmental damage. Engaging in collaborative planning with other nations would not only benefit individual countries that accept climate refugees but would also create a livable future for climate refugees and their families.
Suggested Citation: Rebecca Warren, Climate Migration and Existing Law: Protection and International Cooperation, ACCESSIBLE LAW, Fall 2025.
Sources:
*After becoming licensed in the Commonwealth of Kentucky in 2012, Rebecca Warren practiced immigration law, family law, and estate planning. She then served two consecutive terms as a law clerk for the Federal Judiciary in the Southern District of Illinois. She joined the UNT College of Law faculty in 2022 with five years of experience in law school academic excellence and 20 years of university teaching in the field of Communication. She holds an LLM in Environmental Law and Policy and a Master of Arts in Communication. Her areas of interest include human rights law, environmental justice, asylum and refugee law, and the legal rights of the LGBTQ+ community.
[1] Rebecca Lindsey, Climate change: Global sea level, Climate (Aug. 22, 2023), https://www.climate.gov/news-features/understanding-climate/climate-change-global-sea-level.
[2] Curt D. Storlazzi et al., Most atolls will be uninhabitable by the mid-21st century because of sea-level rise exacerbating wave-driven flooding, Sci. Advances (Apr. 25, 2018), https://www.science.org/doi/10.1126/sciadv.aap9741.
[3] Victoria Masterson et al., Sea level rise: Everything you need to know, World Econ. F. (Mar. 25, 2025), https://www.weforum.org/stories/2025/03/rising-sea-levels-global-threat.
[4] Id.
[5] Id.
[6] Id.
[7] Ben Walker, An island nation turns away from climate migration, despite rising seas, Inside Climate News (Nov. 20, 2017), https://insideclimatenews.org/news/20112017/kiribati-climate-change-refugees-migration-pacific-islands-sea-level-rise-coconuts-tourism.
[8] April L. Brown, Marshallese in Arkansas, Marshallese Educ. Initiative (2024), https://www.mei.ngo/marshallese-in-arkansas.
[9] John Sutter, You’re making this island disappear, CNN (2015), https://www.cnn.com/interactive/2015/06/opinions/sutter-two-degrees-marshall-islands.
[10] Thomas G. Lum, The Compacts of Free Association, Cong. Rsch. Serv. (Apr. 25, 2024), https://www.congress.gov/crs-product/IF12194.
[11]Status of Citizens of the Freely Associated States of the Federated States of Micronesia and the Republic of the Marshall Islands, U.S. Citizenship & Immigr. Servs. (Jan. 24, 2025), https://www.uscis.gov/working-in-the-united-states/status-of-citizens-of-the-freely-associated-states-of-the-federated-states-of-micronesia-and-the.
[12] Id.
[13] Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137; Abby Kleinman, The definition of a refugee under international law: The complexities behind the initial deliberations and modern implications for contemporary refugees, Yale Rev. of Int’l Stud. (2024), https://yris.yira.org/essays/the-definition-of-a-refugee-under-international-law-the-complexities-behind-the-initial-deliberations-and-modern-implications-for-contemporary-refugees.
[14] Refugee (Glos.), U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/glossary-term/50689 (last visited Oct. 8, 2025).
[15] Refugee, Dictionary (2025), https://www.dictionary.com/browse/refugee.
[16] Green Card for Refugees, U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/green-card/green-card-eligibility/green-card-for-refugees (last visited Oct. 8, 2025).
[17] U.S. Citizenship & Immigr. Servs., supra note 11.
[18] Schwerdtle et al., The health impacts of climate-related migration, BMC Medicine (Dec. 11, 2017), https://pmc.ncbi.nlm.nih.gov/articles/PMC5753535/pdf/12916_2017_Article_981.pdf.
[19] U.S. Citizenship & Immigr. Servs., supra note 13.
[20] Should international refugee law accommodate climate change?, UN News (July 3, 2014), https://news.un.org/en/story/2014/07/472372.
[21] Id.
[22] Steven Vanderheiden, Justice and Climate Finance: Differentiating Responsibility in the Green Climate Fund, 50 Int’l spectator 31 (2015), https://www.iai.it/sites/default/files/vanderheiden.pdf.
[23] Sean McAllister, There could be 1.2 billion climate refugees by 2050. Here’s what you need to know, Zurich (Oct. 23, 2022), https://www.zurich.com/media/magazine/2022/there-could-be-1-2-billion-climate-refugees-by-2050-here-s-what-you-need-to-know.
[24] Id.
[25] Introduction to adaptation and resilience, United Nations Climate Change, https://unfccc.int/topics/adaptation-and-resilience/the-big-picture/introduction (last visited Sep 19, 2025).
[26] Sumudu Atapattu, ‘Climate Refugees’ and the Role of International Law, Oxford Rsch. Grp. (Sept. 11, 2018).
[27] Id.
[28] Joanna Apap and Sami Haarju, The concept of “climate refugee” Towards a possible definition, Eur. Parliamentary Rsch. Serv., PE 698.753 (Oct. 2023), https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/698753/EPRS_BRI(2021)698753_EN.pdf.
[29] Id.
[30] Id.
[31] Id.
[32] Atapattu, supra note 24.
[33] Climate Change Indicators: Weather and Climate, U.S. Env’t. Prot. Agency, https://www.epa.gov/climate-indicators/weather-climate (Mar. 26, 2025).
[34] David J. Craig, America’s great climate migration has begun. here’s what you need to know, Columbia Mag. (Fall 2024), https://magazine.columbia.edu/article/americas-great-climate-migration-has-begun-heres-what-you-need-know.
[35] Michon Scott, Does it matter how much the United States reduces its carbon dioxide emissions if China doesn’t do the same?, Climate (2023), https://www.climate.gov/news-features/climate-qa/does-it-matter-how-much-united-states-reduces-its-carbon-dioxide-emissions.
[36] Financing International Climate Action, Ctr. for Climate & Energy Sol., https://www.c2es.org/supporting-the-paris-agreement/international-climate-finance (last visited Dec. 28, 2025).
[37] See Press Release, U.S. Mission to the United Nations, Ambassador Linda Thomas-Greenfield Announces New U.S. Funding to Support Climate Adaptation and Resilience Projects in the Caribbean (Feb. 26, 2024), https://usun.usmission.gov/ambassador-linda-thomas-greenfield-announces-new-u-s-funding-to-support-climate-adaptation-and-resilience-projects-in-the-caribbean.
