Rules of Human Mobility:  Crossing a Submerging Border

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By Samantha Cook, Editor-in-Chief

Research from Cornell University predicts that by the year 2100, 2 billion people may be refugees due to the rising sea levels and high numbers of people who live along the world’s coastlines.[1]  Two of the most hotly contested political and legal topics, immigration and climate change policy, clash in what will almost certainly become a global humanitarian crisis, and the international and domestic legal framework around asylum is not prepared.

In 2016, Ioane Teitiota, a national of Kiribati, was denied asylum in New Zealand.[2]  Teitiota filed a claim with the United Nations Human Rights Commission, asserting that by denying his asylum application, New Zealand infringed on his right to life.[3]  Kiribati is a small island nation whose population has increased exponentially in the last several decades, causing land scarcity and social tensions.[4]  Further, Kiribati’s low sea levels and limited access to freshwater makes it particularly vulnerable to rising sea levels.[5]  Though New Zealand agreed that “environmental degradation and climate change are some of the most pressing threats to the right to life,” it nevertheless deported Teitiota because he did not face an immediate risk.[6]

International refugee law traces back to the 1951 Convention Relating to the Status of Refugees (the “Convention”), which defines “refugee” and forms the basis for international law surrounding granting asylum.[7]

According to the Convention, a refugee is anyone 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.[8]

In the case of Teitiota, the Human Rights Committee determined that, while he faced no immediate risk of being “persecuted”  and therefore he is not a refugee under the Refugee Convention, there are “no hard and fast rules or presumptions of non-applicability . . .” or in other words, escape from the dangers of climate change, under more imminent circumstances, is not ruled out.[9]

It appears, however, that the “imminent threat” approach to granting asylum to climate refugees will set the international political economy up for failure.  An attempt by the United Nations to impose non-refoulement obligations upon New Zealand, or any receiving nation, would be regarded as a challenge to its state sovereignty, but by failing to lay a heavy hand upon member nations in recognizing the impending threat, the international community may exacerbate a future crisis of human mobility.  Though Teitiota was fortunate, if one could use this word, to still have habitable land on Kiribati to return to, by the time his right to life on Kiribati is infringed by a rise in sea levels, it is more likely that there will be another hundred thousand[10] other I-Kiribati seeking to leave.  Here is an opportunity for lawmakers to be forward-thinking, rather than reactionary, to an impending global health and safety crisis.

Environmental asylum and migration is by no means a “new” legal issue.[11]  For decades, environmental refugees have flown under the radar of traditional refugee statistics.  As early as 1995, researchers estimated that there were 22 million “traditional refugees” and an additional 25 million environmental refugees.[12]

Just as the problem is not new, many have proposed legal solutions in recent decades.  Such solutions include expanding the Refugee Convention definition of refugee to comport with human rights;[13] creating a new definition of environmental refugees as “persons who can no longer gain secure livelihood in their traditional homelands because of environmental factors of unusual scope, notably drought, desertification, deforestation, soil erosion, water shortages, climate change, and natural disasters such as cyclones, storm surges and floods”;[14] and even characterizing the right to habitable land within the all-encompassing right to life set forth in the Universal Declaration, a predecessor of the Refugee Convention.

These are all important customary rules, which is, of course, the United Nations’ strong suit, but where the true shift in the legal framework needs to occur is in each individual country’s immigration and asylum policies.

The United States is a significant immigrant-receiving country[15] and, at least nominally, provides public support for the concept of granting asylum.[16]  The pendulum of immigration and asylum policy swings with each election and administration,[17] but the underlying issue remains the same: the existing framework of immigration relief in the United States will be “ill-fitting” in the wake of impending environmental migration.[18]

The United States’ definition of refugee largely echoes that of the Convention,[19] which is very much centered around those being persecuted by their government.  As a result, environmentally displaced persons have not been treated within the existing asylum framework, but rather granted “temporary protected status . . . and humanitarian parole”[20] – temporary and insufficient measures to resolve the true humanitarian crisis at hand.

Proposals to address the gap in remedies have come from scholars and politicians alike.  The Nansen Initiative, for example, proposes an international, consultative approach that engages states to lead policy reform on environmental displacement.[21]  This sort of aspirational framework, however, is carried out through domestic initiatives, such as the Green New Deal, which recognizes that rising temperatures will adversely affect migrant populations.[22]  Even the Green New Deal, itself a somewhat aspirational and un-contoured omnibus, remains ambiguous on the treatment of climate refugees.  Julián Castro, a former Democratic presidential candidate, went so far as to call for the creation of a new class of climate refugees and raising the national refugee cap to the pre-Trump 110,000.[23]

Coincidentally, this is almost the exact size of the population of Kiribati, the home of Mr. Teitiota.

[1] Blaine Friedlander, Rising seas could result in 2 billion refugees by 2100, Cornell Chronicle (June 19, 2017)

[2] Praveen Menon, Sending back climate refugees may violate right to life: U.N. body, Reuters (Jan. 21, 2020)

[3] United Nations Human Rights Committee, Views adopted by the Committee under article 5(4) of the Optional Protocol, concerning communication No. 2728/2016, ⁋ 1.1.

[4] Id. ⁋ 2.4.

[5] Id.

[6] Menon, supra note 2.

[7] Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259 (entered into force Apr. 22, 1954).

[8] Id. at 6261.

[9] United Nations Human Rights Committee, Views adopted by the Committee under article 5(4) of the Optional Protocol, concerning communication No. 2728/2016, ⁋ 2.8.

[10] The current population of Kiribati is roughly 111,796. CIA World Factbook, Australia – Oceania:: Kiribati, (last visited Mar. 30, 2020).

[11] Mustafa Mahmud Naser, Article: Climate Change, Environmental Degradation, and Migration: A Complex Nexus, 36 Wm. & Mary Envtl. L. & Pol’y Rev. 713 at 717 (2012).

[12] Norman Myers, Climate Inst. of Wash., D.C., Environmental Refugees 150 at 1 (1995).

[13] Jessica B. Cooper, Student Article: Environmental Refugees: Meeting the Requirements of the Refugee Definition, 6 N.Y.U. Envtl. L.J. 480, 488 (1998).

[14] Org. for Security and Cooperation in Europe, 13th Economic Forum, Prague, May 23-27, 2005, Environmental Refugees: An Emergent Security Issue 1, (remarks by Norman Myers), available at

[15] Emily Nasser-Hall, ARTICLE: Square Pegs in Round Holes: The Case of Environmentally displaced persons and the need for a specific Protection Regime in the United States, 22 Tul. J. Int’l & Comp. L. 263, 264.

[16] SENATE RESOLUTION 177-ENCOURAGING THE PROTECTION OF THE RIGHTS OF REFUGEES, 151 Cong Rec S 6833;  U.S. Citizenship and Immigration Services, Asylum (last visited Mar. 30, 2020).

[17] The years 2018-2020 have marked the lowest admission of refugees since 2002.  Migration Policy Institute, U.S. Annual Refugee Resettlement Ceilings and Number of Refugees Admitted, 1980-Present (last visited Mar. 30, 2020).

[18] Nasser-Hall, supra note 15, at 265.

[19] The full legal definition of “refugee” is codified at 8 U.S.C.S. § 1101(a)(42) (LexisNexis, Lexis Advance through Public Law 116-108, approved January 24, 2020).

[20] Nasser-Hall, supra, note 15 at 265.

[21] The Nansen Initiative, About Us, (last visited Mar. 30, 2020)

[22] Nicole Narea, Julián Castro’s climate change plan would recognize a new class of refugees, Vox (Sep. 4, 2019 6:30 PM)

[23] Id.

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