Pragya Sharma* & Raunak Dixit**
Introduction
Ioane Teitiota requested acknowledgement of a privilege that authorities had long disregarded in 2015. He was born in Kiribati, where the highest point is just two meters above sea level. He had witnessed freshwater supplies being contaminated by salt water and his home being eroded by tides. Facing deportation, he told the court that return would endanger his life, a fear grounded not in any government’s intent to harm but in the sea engulfing his country.
In its 2020 views, that climate-related suffering may expose people to violations of their right to life and hence trigger non-refoulement obligations was approved by the UN Human Rights Committee. It nonetheless dismissed his claim on the facts, holding that the risk to Kiribati was not yet sufficiently imminent. Mr Teitiota was deported notwithstanding that the underlying principle had been accepted.
The 1951 Refugee Convention safeguards persons fearing persecution on grounds of race, religion, nationality, membership of a particular social group, or political opinion. Designed for Cold War dissidents, it remains largely unrevised while climate displacement has grown into one of the largest categories it was never built to address.
In 2023 alone, climate-related disasters displaced at least 6.6 million people, according to the Internal Displacement Monitoring Centre, and the World Bank’s Groundswell Report projects up to 216 million internally displaced by 2050, absent major intervention. This article contends that the resulting protection gap is structural rather than interpretive and proposes a two-track framework to close it.
The Convention’s Structural Hostility To Climate Claims
Three features of the Convention work against climate claims. First, persecution presupposes a persecutor, whereas climate harm is the diffuse, cumulative consequence of a century of industrialised emissions, never aimed at any island. Hathaway and Foster, in The Law of Refugee Status (2014), treat persecution as a failure of protection in the relationship between an individual and their own state, thereby presupposing an identifiable persecutor that diffuse climate harm does not have.
Second, the Convention was built around the male political dissident, whereas the IPCC’s Working Group II report 2022 finds that women in climate-vulnerable regions are more likely to be displaced, less likely to hold adaptation-supporting land rights, and more likely to face violence when displaced, a disproportionate vulnerability that no Convention ground captures.
Third, the Convention carries the residual conservatism of Cold War interpretation, built around a state agent, a single triggering event, and an individually targeted victim, not diffuse structural harm or group-wide vulnerability. Goodwin-Gill and McAdam acknowledge that the Convention’s humanitarian purpose creates interpretive space for a more expansive approach, but purposivism cannot read Article 1A(2) beyond its own text. For most climate-displaced persons, protection therefore requires new law.
What Exists And Why It Falls Short
UNHCR’s 2020 Legal Considerations identify narrow pathways that can satisfy persecution, including discriminatory denial of adaptation resources, but these cover only a fraction of those needing protection. Ethiopia and Kenya recognised Somalis fleeing the 2011-2012 drought under a regional “public order” ground in the OAU Convention.
In Daniel Billy v. Australia, the UNHRC held Australia liable for failing to protect the Torres Strait Islander peoples from foreseeable climate harm under a binding treaty. Most significantly, on 23 July 2025, the International Court of Justice, in its Advisory Opinion on climate change, affirmed that states owe non-refoulement obligations wherever return would expose an individual to a real risk of irreparable harm to life, expressly endorsing a real-risk threshold over the imminence standard that had defeated Teitiota’s claim.
However, as it grants no rights to residency, employment, or family unity, non-refoulement is a shield at the border rather than a status. As a result, there is a foundation for a cross-border protection framework, even though the framework itself has not yet been constructed.
Engaging The Critics
According to Hathaway and Foster’s paradigm, persecution is linked to a person’s disintegration from their own state. Because the Convention safeguards the link between a claimant and their state of origin rather than industrialised states in general, this approach warns against interpreting a state’s inability to reduce diffuse global emissions as a violation of the Convention. For this reason, Track Two is a distinct tool rather than a reinterpretation of persecution, while Track One needs a discriminating governmental failure to protect a particular population rather than a claim against emissions per se.
The deeper part of Jane McAdam’s concern is that she is against a new treaty in general. Her argument is based on three points: first, that climate change is rarely the only factor contributing to migration; second, that reopening talks in the face of anti-migration sentiment runs the risk of weakening protection in general; and third, that instruments other than treaties, like planned relocation and disaster risk reduction, may benefit displaced people more than a new status.
Her first worry is addressed by demanding, rather than an undifferentiated trigger, a verified, group-specific relationship to climate impact in both tracks. Her second argument is not for giving up on the endeavour, but rather for a limited Protocol established outside of the 1951 Convention itself. Since disaster risk reduction deals with prevention and a protocol deals with the population for when prevention has failed, her third is a supplement rather than a competitor.
A Two-Track Framework
By its very nature, Track One is limited to plaintiffs who can demonstrate a discriminatory link. By its very nature, Track Two is wide, encompassing all claimants that Track One’s more restrictive criteria do not.
Track One, the Climate Nexus Test, requires no new legislation. It builds on the “particular social group’’ jurisprudence in Shah and Islam [1999] UKHL 20 and the pathway New Zealand’s courts opened in Teitiota. The test requires that the harm reflect discriminatory state power rather than just income and asks whether the claimant is a member of a group whose climate vulnerability is systematically disproportionate, whether the same exposure would occur regardless of group membership, and whether the state is unable or unwilling to prevent the disparity.
Imagine a lady from a low-lying delta whose village’s seawall repairs were financed for a nearby, ethnically diverse area but postponed for her own; this is a trend rather than a singular choice. Peer-reviewed studies on Bangladesh’s Rakhain and Munda coastal minorities document this correlation after accounting for income, which isolates discrimination from mere poverty.
Where a claimant shows a statistically significant, publicly documented resource disparity tracking a protected characteristic, the adjudicator presumes the disparity satisfied unless the record discloses a legitimate, non-discriminatory explanation. The device is not novel, in that US asylum law already presumes a well-founded fear once past persecution is shown, and shifts the burden to the government under 8 C.F.R. § 1208.13(b)(1). Track One extends this from an individual claim against a party to the proceeding to group-level evidence assessed against a non-party country of origin. Only true evidentiary silence defeats the presumption, and even then, the claimant loses only the Track One route, not protection itself.
Track Two, a Supplementary Protocol on Climate-Induced Displacement modelled on the 1967 instrument, would define a “climate refugee” as a person unable to return owing to serious climate harm violating a fundamental right, namely life (ICCPR Art. 6), an adequate standard of living (ICESCR Art. 11), health, or minority cultural rights (ICCPR Art. 27), adopting the ICJ’s real-risk threshold so the standard which defeated Teitiota does not migrate into the new instrument.
Claims would be determined through domestic status-determination procedures under UNHCR supervision, with appeal to a treaty-specific review body. Non-refoulement would be absolute for ratifying states regardless of financing, because who bears the cost is separate from whether protection exists, and ratification offers states a bounded alternative to the open-ended exposure they already face under the ICJ’s opinion.
A ratification threshold keyed to cumulative historical emissions, adapting to the social-cost-of-carbon methodology already used to attribute historical responsibility among corporate emitters, would ensure the threshold cannot be met by low-emitting states alone. A funding line from the COP27 Loss and Damage Fund to host states carrying the largest caseloads would apply polluter-pays to the burden of protection, not the obligation itself.
Conclusion
Mr Teitiota was deported before any framework existed to assess his claim on a real-risk standard, notwithstanding that the Human Rights Committee had not disbelieved him, in that it affirmed the very principle he invoked, but nonetheless found his case not yet imminent enough, a flaw in the architecture of the law rather than any failure of judgment, since the structure was built in 1951 for a world that no longer exists. Under this framework, his claim would instead be assessed against the ICJ’s real-risk standard under Track Two.
Millions of people displaced by climate change today live without rights, between a home that no longer exists and a host country that will not recognise them. The Climate Nexus Test can be applied now, within existing doctrine, wherever a genuine discriminatory nexus can honestly be established, and the Supplementary Protocol can be negotiated within this decade, building on COP27 and the obligations the ICJ has affirmed. The objections from Hathaway, Foster, and McAdam call for careful design, not paralysis, but states will move only when the law makes delay costlier than action.
* The author is a Second-year Law student at Dr. Ram Manohar Lohiya National Law University, Lucknow. The author may be contacted at pragyasharma.rmlnlu@gmail.com.
** The author is a Second-Year Law student at Dr. Ram Manohar Lohiya National Law University, Lucknow. The author may be contacted at raunakdixit.rmlnlu@gmail.com.
This blog reflects the personal views of the author and does not necessarily represent the views of The Policy Chronicle.