Nandini Dubey is a Fourth Year BCOM.LL.B. & Krishna Chandrakar is a Third Year BA.LL.B. Student at GNLU Silvassa Student at GNLU Gandhinagar.
INTRODUCTION:
An island nation located in the western pacific region is disappearing, bit by bit, every passing day. It is in the process if losing a considerably large portion of its inhabitable territory and this is not because of geopolitics or colonial interests, rather it is a result of the dooming effects of climate change. This is the bleak reality of Kiribati, and many other island states alike. Rising global temperatures has resulted in melting glaciers, causing the sea levels to rise, day by day. In the face of these harrowing circumstances, that are still unfolding, an unsettling question has been put forth by Kiribati’s former president, Anote Tong. While speaking in a session at the United Nations General Assembly, he posed a question that has yet not provoked a definitive response from the international community: What are the obligations of states towards the nation and its citizens that has been rendered uninhabitable?
This is a query inquiring about the legal rights and remedies of climate refugees in a global order. Climate Refugees ̶ people who were forcefully displaced from their abodes not because of political persecution but due to environmental degradation of their homeland. It draws attention to a concerning void in the international legal system and why the courts, states and institutions have an exigent duty to fill it. As the sea-levels rise and threaten the inhabitability of several coastal zones, maritime interdictions and naval blockades are becoming a sad reality. Therefore, the forthcoming climate displacement crisis lies at dangerous crossroads of refugee law, human rights law and the law of the seas.
THE LEGAL FRAMEWORK OF CLIMATE CHANGE INDUCED DISPLACEMENT:
The global settlement patterns are changing because of global warming and climate change. Slow-onset processes like coastal erosion, salination and sea-level rise coupled with disasters like cyclones floods are rendering several coastal regions inhabitable or extremely unsafe.
The 1951 Refugee Convention, formulated in the wake of the Second World War, serves protection only to those people who are persecuted on the basis of race, religion, nationality, political opinion or membership of a particular social group. It does not account for displacement induced by environmental collapse. Individuals seeking refuge from submerging and eroding islands are hence left unprotected.
However, this gap hasn’t gone unnoticed. The Paris Agreement (2015) was a landmark accord for the acknowledgement of this climate driven displacement as Article 8 of the agreement was the first comprehensive attempt to address the issue at hand by putting an obligation on the parties to respond to the “loss and damage” associated with the adverse effects of climate change, such as extreme weather events and slow-onset events, which incudes displacement and loss of livelihood. Although this was not a treaty on refugee law, still it marked the first global environmental law instrument to explicitly recognise the link between climate change and population movement. Subsequently, the COP21 decision established the Task force on Displacement, resultantly coordinating responses to cross-border climate migration.
Furthermore, beyond legislative efforts, an evolving jurisprudence is also emerging. The decision of the ECHR in Hirsi Jamaa v. Italy (2012) left a historic mark by recognizing the extraterritorial human rights obligations of nation-states. The Court condemned Italy’s “pushback” operations citing them as violative of Articles 3 and 4 of the Protocol 4 of the ECHR because they exposed migrants to ill-treatment and breached the jus cogens norm of non-refoulement. The Court ruled in favour of the notion that states should protect human rights beyond their territorial jurisdiction. Similarly. The in Teitiota v. New Zealand (2020), the UN Human Rights Committee held that non-refoulement obligation enshrined under Article 6 of ICCPR, can be invoked in climate induced displacement cases where environmental degradation “renders life unsustainable” in the country of origin.
However, when it comes to domestic law and domestic courts, the underlying power of state sovereignty is invoked, usually under the guise of ‘protection of citizen’s national interest’. For example, in the case of Sale v. Haitian Centres Council (1993), the US Supreme Court ruled that the Refugee Convention does not apply to Haitian nationals encountered at sea outside U.S. territory. This allowed the Coast Guard to send people back without adjudicating their asylum claims. While UNHCR and scholastic critics have strongly reacted, the doctrine lives on in the U.S.
In the latest stance of the International Court of Justice (ICJ), the interpretative tide has just shifted on to positive waves. The ICJ’S Advisory Opinion on Climate Obligations (2025), ruled that states owe a duty of “due diligence” to prevent climate-related harm and may incur international responsibility when failing to regulate emissions adequately. Furthermore, the Court noted that the disappearance of physical territory does not necessarily extinguish statehood, a critical principle for island nations whose fate may otherwise seem legally terminal.
Thus, where refugee law falls short, human rights law fills some of the void, serving as the backbone of emerging climate protection by extending non-refoulement beyond persecution to encompass existential environmental threats.
Furthermore, State practice reinforces this trend. Kiribati’s purchase of land in Fiji and the Maldives’ attempts to negotiate potential relocation routes demonstrate that climate mobility is not theoretical, rather, it is a present administrative reality.
MARITIME BLOCKADES AND THE COLLISION WITH THE STATE CONTROL
As island states gradually submerge and the coastal regions are increasingly submerged, climate migration is being increasingly experienced through maritime migration. This phenomenon puts climate migrants in direct conflict with the state controls mechanisms to control maritime spaces, thus raising huge legal concerns. The San Remo Manual of the International Law Applicable to Armed Conflict at Sea (1994) explicitly provides that blockades are allowed only during time of armed conflict, and should not result in the starvation of civilians and denial of humanitarian assistance, otherwise blockades are considered illegal. Nevertheless, several states have used naval capacities to prevent the ingress of migrants as has been shown by Mediterranean operations against push backs, Australian offshore interdictions and U.S. Coast Guard returns. These are some examples of militarized approach to migration management. In addition, Libya intercepting migrants in international waters, funded by European governments, and transporting them back to the detention centres demonstrates a legal grey area where provision of state control seems to trump protection of human rights.
The law clearly stipulates that the state with a duty to stop migrants at sea would have the responsibility of ensuring their human rights. Consequently, countries have to ease the way for asylum applications, not expel people en masse and ensure those are not returned to a perilous situation. States are not able to deport climate displaced persons to danger zones, such as sinking islands or areas devastated by natural disasters, because it is prohibited to torture and degrade, even on the high seas. As the trend of maritime migration increases in response to climate change, states are imposing tougher forms of deterrents which breed conflict. While international law provides some guidance its enforcement is an on-going challenge.
ON THE FRONTLINE: WHEN STATEHOOD ENDURES AND ISLANDS SINK:
Kiribati’s purchase of land in Fiji is the first time a government has negotiated for managed relocation in advance of an environmental catastrophe that necessitates a hasty exodus. Former President Anote Tong said the initiative was a “food security initiative,” but the true motive was clear: to plan for relocation in the event of sea-level rise. The fact that the International Court of Justice reaffirmed that statehood remains even when there is no inhabitable land gives Kiribati more leverage. The state can maintain its legal personality, maritime jurisdiction, UN representation and negotiate sovereign rights of population mobility which distinguish it from stateless constituencies. This has significant implications for legitimacy, governance and standing of the nation in the world.
The Maldives have been forthright about their precarious situation, whose average height is only 1.5 meters. Former President Mohamed Nasheed had openly spoken of getting the land in Sri Lanka or India. The archipelago has become iconic of the vulnerability of climate. With 1,200 islands, each barely elevated above sea level, the country has an urgent deadline. Its fragility highlights the need for international frames to enable dignified pre-disaster movement. Bangladesh’s repatriation of Rohingya refugees in Bhasan Char, a far-flung silt island in the Bay of Bengal, is a form of displacement, a harrowing possibility for how countries will address climate flight – by walling in instead of walling off. Individuals forced away from homes were sometimes placed on islands away from wider networks of society.
Fiji, Vanuatu, Tuvalu and Samoa – people from Pacific Islands – have had to evacuate many times as a result of intensified cyclones. This displacement cycle cannot continue indefinitely, however. Post-cyclone reconstruction is a phase followed by post-cyclone rise in sea levels, salinisation wrecking agriculture, and regularly reoccurring storms besieging the same communities. Insurance providers pull out, developmental capital runs out and the public finances run out of money. The resulting pattern is a portent of a gloomy future: eventual reconstruction is not an option but rather a need for managed retreat. These are empirical examples to show that climate displacement is not just theory; this is something which is playing out now, changing how governments work, altering notions of sovereignty, redefining citizenship.
BUILDING A FUTURE: NEW LEGAL PATHWAYS
The prevailing legal regime is found to be inadequate to address the exigent needs of climate mobility as more and more people are forced to abandon their homes in light of rising sea-levels. The international community must pass new legislation which would give climate-displaced persons temporary protection for a limited period of time, similar to the European Union’s Temporary Protection Directive. The Pacific Islands Forum and the African Union, as regional organizations, could come up with regulations that would allow the movement of people and people with properties without obstacles during environmental crises. Some jurisdictions have already established special categories of visa for climate-affected populations, for example Finland and New Zealand. Moreover, humanitarian sea corridors may be necessary to ensure safe transit in the face of sudden disasters, suitable to the principle of non-refoulement, which protects against return to unsafe situations. This approach eliminates the need for a new convention, instead it represents a reaffirmation of existing human rights obligations to provide assistance for those displaced by climate change.
Recent resolutions passed by the United Nations representing the Creation of the Loss and Damage Fund are a huge step toward holding states accountable for emissions that precipitate land loss and displacement. The Fund’s goal is to facilitate relocation, infrastructure development and community rebuilding, conceptualising climate displacement as an issue of justice and reparations. The 2025 advisory opinion of the International Court of Justice has strengthened this story by saying that states that are over their emission limits can be held responsible for damages. Furthermore, the continuity of statehood of displaced persons, the retention of nationality and state protection, must be explicitly spelled out in the text of treaties. Absent such frameworks, over the coming decades migration could become chaotic and turn those displaced by climate potentially stateless.
CONCLUSION:
As sea-level rise redraws territorial boundaries and submerges ancestral homelands, climate-induced displacement has transformed from an instance of displacement on the margins to a new legal and humanitarian challenge in the here and now. Existing refugee law provides little protection, and human rights norms, the development of jurisprudence and the nascent doctrines on climate responsibility are left to fill out the procedural gap. The lived experiences of Kiribati and Maldives and Pacific islands peoples have shown that this crisis has already begun and this is a crisis in which a coherent international framework safeguarding dignity, mobility and statehood is needed. If international law is to remain responsive and humane in the Anthropocene, it must recognise climate refugees not as anomalies, but as foreseeable citizens of a warming world – who deserve the protection, pathways and justice