The climate crisis has been described internationally as “the greatest human rights challenge of the 21st century.”[1] Despite this, there has been great difficulty in legally recognizing it as such. This article focuses on existing variability across paradigms used to assess climate suffering, exploring the legal basis for framing bureaucratic failure to address preventable harm as a violation of human rights. While the principle of a human rights framework exists within current literature, it is unclear how this framework is applied in practice. There is a push to discuss anthropogenic environmental devastation as a human rights violation to honor the severity of the cause. However, when it comes to the semantics of classifying specific actions as international transgressions, myriad questions arise relating to methods of assigning culpability, enforcing consequences, and rectifying harm caused. Simultaneously, climate displacement has necessitated cross-border migration, but asylum claims of climate refugees remain comparatively delegitimized and unstandardized on the global stage. Climate refugees must provide evidence of direct persecution related to climate impacts to qualify for asylum status, which a human rights approach to climate change presents a normative tool for achieving. As a result, the extent to which governmental deprioritization of climate mitigation or resilience can be classified as a human right has broader implications on international asylum protections for those externally displaced by a changing climate.
Background
In 2005, Sheila Watt-Cloutier, Chair of the Inuit Circumpolar Council, filed a petition to the Inter-American Commission on Human Rights arguing that the United States’ failure to limit greenhouse gas (GHG) emissions—despite their disproportionate and devastating harm to the Arctic—constituted a violation of human rights.[2] Although this petition was denied on the basis of insufficient information, it catalyzed large-scale discourse surrounding the ‘right’ to a stable climate. In the United Nations Climate Change Conference of the Parties (COP) 21 in 2015, international discourse culminated in the identification of eleven human rights that are violated by climate deprioritization under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR).[3] The Universal Declaration of Human Rights was adopted by the United Nations General Assembly in 1948 and signed by all 193 member states, and the ICCPR followed in 1965 with 180 signatories. The human rights violated between the two documents are as follows: the right to life, self-determination, development, food, water and sanitation, health, housing, education, meaningful and informed political participation, and the rights of those most vulnerable and the rights of future generations. The most salient of these was the first listed here, an identified “inherent right to life.” With 400,000 deaths caused annually by climate change, the deprivation of life from the climate crisis is clear.
As a result of both intensifying climate hazards—including extreme weather events, desertification, and resource scarcity—and the existential self-determination question posed by rising sea levels in Small Island Developing States (SIDS) like Tuvalu, Kiribati, and the Maldives, a rising annual average of 21.5 million individuals are forcibly displaced each year.[4] These climate-induced displacements occur through both sudden-onset disasters such as hurricanes and floods, as well as slow-onset environmental degradation that gradually renders regions uninhabitable. Despite the increasing number of climate refugees, there are few codified protections for such individuals on an international scale. The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol Relating to the Status of Refugees, cornerstones of international refugee law, do not recognize environmental factors as grounds for refugee status, leaving those displaced by climate change in a precarious legal liminality.[5] There are examples of regional instruments like the 1984 Cartagena Declaration on Refugees or the 2009 African Union’s Kampala Convention that have begun addressing these gaps by including environmental displacement within their protective frameworks, but implementation remains inconsistent.[6] The ambiguity of asylum law surrounding climate displacement introduces further volatility into a system already susceptible to unpredictability, as nations struggle to determine their responsibilities toward environmental migrants, creating ad hoc responses rather than coordinated international action. This legal uncertainty further complicates humanitarian assistance efforts for short-term and long-term resettlement and the preservation of cultural identity for communities facing the permanent loss of their homelands due to irreversible environmental changes. In all, these complications necessitate a uniform, internationally recognized human-rights approach to the climate crisis that brings environmental justice to the forefront of attempted solvency.
Implementation of a Human Rights Framework
To answer the semantic questions of what adopting a multinational human rights paradigm looks like, it is critical to understand both the principle and actual capacity of countries to do so. In the landmark case Massachusetts et al. v. Environmental Protection Agency (EPA), theSupreme Court of the United States provided a model for establishing institutional culpability for environmental harms experienced by a specific group.[7] This establishment of institutional culpability can be reduced to the question of the legal standing of a petitioner. Under federal civil procedure, a petitioner has standing if they can demonstrate suffering a particular injury that is either actual or imminent, that injury is generally traceable to the defendant, and a favorable outcome would redress the injury in question. Although legal standing is separate from culpability, the question of standing is critical because it is a prerequisite to civil procedure in the United States. In Massachusetts, the petitioners called for the regulation of emissions of four greenhouse gases from new motor vehicles in accordance with the Clean Air Act, which the EPA denied under the assertion that they were not authorized to regulate emissions in such a manner and that there was not a clear causal link between the reduction of GHG emissions and global surface temperature fluctuations. The Supreme Court granted certiorari and the EPA’s claim that it was neither (1) their responsibility nor (2) within their ability to regulate was overturned on the grounds that petitioners did have clear legal standing. The particular injury was determined to be clear, actual, and imminent. The courts pointed specifically to “a precipitate rise in sea levels, severe and irreversible changes to natural ecosystems, a significant reduction in winter snowpack with direct and important economic consequences, and increases in the spread of disease and the ferocity of weather events.” It was noted that global sea level rise was eroding Massachusetts’ coastal land, presenting both an economic and ecological cost.
The more contentious aspect of the standing issue in this case was demonstrating that this particular injury is fairly traceable to the defendant and, if so, that a favorable outcome would be capable of redressing the injury. The EPA argued that there was no substantial causal connection between its decision not to regulate GHG emissions from new motor vehicles and the specific injuries claimed by the petitioners, such as sea level rise and ecological disruption. This lack of causation was defended for several compelling reasons. Anthropogenic climate change results from the collective actions of numerous global contributors, not any single regulatory decision. Major emitters like China and India release vast quantities of greenhouse gases, as do many non-automotive sectors within the United States itself. Thus, the relative contribution of U.S. motor vehicle emissions represents only a fraction of global GHG emissions. Given this context, it is highly improbable that the EPA’s specific decision not to regulate these emissions was the decisive factor or tipping point that triggered the environmental harms experienced by Massachusetts petitioners. The EPA contended that even if it had implemented the requested regulations, the marginal difference in global emissions would likely have been insufficient to prevent the claimed injuries or the difference would be offset immediately by increased emissions from another actor, given the overwhelming influence of other emission sources worldwide. The defense of the EPA, in short, was that the causal chain between the EPA’s regulatory choice and the petitioners’ specific environmental injuries was too attenuated to satisfy legal standards of causation. Therefore, the EPA maintained that the injury was not traceable to the defendant and a favorable decision would redress the alleged harms.
The Court, however, disagreed. The Court cited Williamson, Attorney General of the State of Oklahoma et al. v. Lee Optical of Oklahoma, in which the Supreme Court overturned a lower court decision ruling that mandating eyeglasses retailers to require a novel prescription for each purchase was unconstitutional on the grounds that there were cases in which it was unnecessary.[8] The throughline was this: “The law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure [is] a rational way to correct it.”[9] When recontextualizing this in Massachusetts, the Supreme Court points out that regardless of how insignificant the delta of benefit is from instituting a particular legislative measure—although one questions how negligible U.S. automobile emissions truly can be—it is still harm that is directly traceable to its actor and harmful to the defendant.
Furthermore, it is noted that agencies “do not generally resolve massive problems in one fell swoop… but rather whittle away over time.” The significance of this is that the lack of EPA regulations is framed as a cog in a larger machine moving towards ultimate rectification, or even reversal, of the harm incurred by the Massachusetts coastline. This means that beyond the principled obligation to avoid preventable evil, failure to institute this particular measure can be framed as inhibiting progression towards this ultimate goal; “while regulating motor-vehicle emissions may not by itself reverse global warming…EPA has a duty to take steps to slow or reduce it”.
The implication here for a broader human rights framework is that a petitioner has standing to hold a country culpable for failure to address preventable harm, such as in the case of the EPA refusing to regulate motor vehicles. The state has a negative obligation to not actively harm its constituents; given that Massachusetts holds that the EPA had the power to regulate emissions contributing to active harm, petitioners then have standing to hold actors accountable for violating their negative obligation when actors do not adequately mitigate preventable harm. Contrary to the way that human rights are systematized in the status quo, an active violation approach, the violation here can be in regulation or failure to intervene in preventable harm as well. Another instance of culpability could be due to exceeding emission targets that they have agreed to comply with in international treaties. In other words, the violation is not every domestic action that contributes negatively to climate change, but rather all active and/or demonstrated deprioritization of climate goals by failing to mitigate preventable harm by the acting political body. Regardless of the number of actors contributing to the problem, each actor is not immune from responsibility.
Implications on International Asylum Law
Upon establishing the capacity to introduce a rights-based approach, the next question is that of incentive. The most important and concrete impact of the framework, among many, is the weight this approach would hold for environmental refugees. At the moment, the most grave harms of the climate crisis, caused by high emitters in the Global North, are felt by countries in the Global South, who have suffered 99% of the fatalities from the climate crisis thus far.[10] Without an existing legal framework for high-emitting countries to provide refuge for those forcibly displaced across borders due to environmental shifts that said countries caused, there is (1) a principled claim of injustice to be made and (2) a misalignment with the original intention behind asylum paradigms. The ultimate goal of asylum law is “to protect a person fleeing their home country where their safety is no longer guaranteed and their human rights are threatened.”[11] The underlying issue is that while climate change has necessitated cross-border migration, climate refugees are afforded far fewer rights and protections than traditional refugees fleeing their countries of origin on the basis of persecution.
When predominantly Western industrialized nations—responsible for 92% of excess historical carbon emissions—continue high-emission activities while knowing the consequences for low-lying Pacific islands, drought-stricken sub-Saharan regions, and hurricane-vulnerable Caribbean communities, this represents a form of structural violence with identifiable perpetrators and victims. The resulting displacement mirrors persecution’s core elements: predictable harm inflicted on specific populations by actors who were capable of preventing it.[12] This asymmetry of power and responsibility demands legal recognition, as climate refugees face threats to survival regardless of whether or not they can claim membership in a politically persecuted group. The human rights framework is impactful because it directly frames climate displacement as a form of persecution, placing climate refugees under a classification of individuals entitled to rights and protections that climate refugees are not currently entitled to.[13] The United Nations High Commissioner for Refugees (UNHCR) has previously expressed reluctance to expand international definitions of a refugee for this reason. There is a concern that “by expanding the current refugee definition, it might suggest that there is a connection between persecution and climate change.”[14] The argument as to why this connection is flawed returns to the question of legal standing; the United Nations Human Rights Council (UNHRC) holds that those displaced by climate change are anticipatory and therefore not able to prove actual or imminent harm—markedly different from political persecution.[15]
The consequences of this inherent flaw can be clearly seen in the case Teitiota v. New Zealand , in which climate harms were classified as anticipatory. In the UNHRC case Teitiota v. New Zealand, [16] the small island nation of Kiribati is projected to disappear by 2050 as a result of sea level rise. There has been mass internal displacement to the capital of Tawara, leading to greater freshwater contamination and the spread of disease. The encroachment of seawater onto formerly cultivated land has contaminated crops, while droughts have eliminated the remaining freshwater supply. Coastal erosion has deteriorated infrastructure, including sewer systems, and exacerbated homelessness. With widespread destitution, famine, drought, and disease, Kiribati is rapidly becoming uninhabitable to its over 100,000 residents. In 2012, Kiribati President Anote Tong stated that “moving won’t be a matter of choice…[but] a matter of survival.” Importantly, the impact of environmental devastation is not limited to natural disasters. In Teitiota v. New Zealand, petitioner Ioane Teitiota and his wife moved from Tarawa, Kiribati, to New Zealand, fearing this devastation.[17] They overstayed their work visas, then later filed for recognition of protected status as refugees. This case was appealed to the New Zealand High Court, but the couple was ultimately deported back to Tawara in 2015. This led to Teitiota filing a complaint to the UNHRC on the basis that New Zealand had violated Article 6 of the ICCPR, his right to life. If proven that Teitiota had well-founded fear that he would experience the harms stated (malnutrition, disease, etc.) upon his return, then New Zealand would be in violation non-refoulement—the principle that an individual cannot be deported back to a country in which they are being persecuted, meaning their “life or freedom would be threatened”—as per the 1967 Convention Relating to the Status of Refugees.[18] If New Zealand were proven to be in violation of non-refoulement (i.e., that Teitiota’s “life…[was] threatened” upon return), it would be symmetrically clear that the climate crisis in Kiribati demonstrated a threat that violated his Article 6 right to life.
Within New Zealand, the lower court did not condemn the country as such due to the failure of Teitiota to meet the threshold of actual or imminent harm. The injury was perceived as anticipatory rather than imminent (here defined as risk to life that is “at least likely to occur”) as it was impossible to articulate precisely which and when harm would occur due to environmental degradation. Crucially, the climate change-caused harms described in the case were nearly inevitable at this point, and there is an existing measure of subjectivity in establishing the “well-founded fear” metric of refugee status. Due to the threat to Teitiota’s life being outright denied, there was no margin even to discuss the possibility of the anticipated harm being classified as a human rights violation. When the case was brought to the UNHRC, the court determined that an individual could only claim victimhood of a human rights violation if that individual were “actually affected,” meaning the IPT’s stance on failure to prove imminent harm of the climate crisis was upheld. Given the inevitability of environmental devastation in Kiribati at the time, however, it is incredibly unclear what constitutes actual and/or imminent harm for individuals who are victims of environmental stressors, including air quality and volatile weather events, in daily life.
Even when harm is established, the rights-based framework bears no relevance unless the petitioner is able to prove that their experienced or anticipated harm has a direct causal relationship to climate change. It is likely unfeasible to determine whether or not any specific nation caused the climatic change experienced by the individual applying for asylum. However, the argument is that any nation contributing significantly and inequitably enough to climate change (e.g., T-20 GHG emitters) can be held culpable for the phenomenon. High-emitting actors that may be culpable if their preventable production and release of greenhouse gases are a contributing factor to anthropogenic climate change cannot be held accountable unless the harm is directly traceable to climate change. In Cruz v. Garland, the First Circuit Court of Appeals of the United States held that in order even to be considered persecution, the environmental devastation must be indisputably tied to the climate crisis.[19] In 2021, Roni Cruz Galicia entered the United States from Guatemala with his wife and son, applying for asylum post-arrival on the basis of climate change-related drought and natural disasters. Given that criteria for refugee status within the United States is defined as being unable or unwilling to return to one’s country of origin due to a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, Cruz claimed membership of a social group that he deemed “climate refugees.” He stated that the epidemic of malnutrition and habitable land meant that he “felt [they] had to leave in order…to survive”. While this testimony was found credible, the First Circuit ultimately denied the petition because he did not sufficiently prove imminent harm, as Cruz was required to show that it was “more likely than not” that he would be a victim of the described persecution. It it was unclear why this harm was not simply the result of structural socioeconomic disadvantage. Further, the Guatemalan government’s inaction to protect Cruz from natural disasters or address food justice inequality caused by the climate crisis was not regarded as constituting persecution.
In comparison with Massachusetts v. EPA, examining the facts of all three cases reveals that the imminent harm was equivalent or perhaps greater in Teitiota and Cruz, suggesting ambiguity in how harm to the injured party is adjudicated in cases of climate violence.[20] Despite principled arguments, if even the basic conceptualization of the injury in legal standing cannot achieve consensus, it is unrealistic to expect that this injury be deemed persecution and serve as a pathway to asylum. The standing itself is critical because a human rights framework is about determining that affected individuals have the right or capacity to introduce a lawsuit. It is impossible to determine that the entity being petitioned for asylum is truly culpable for the harm, but answering the question of locus standi is fundamental and a prerequisite to achieving justice if it is. The underlying issue here appears to be the consistency rather than the feasibility of characterizing environmental degradation as harm itself. This is not to say that existing infrastructure is capable of supporting an influx of refugees that may emerge from
The capricious standard being applied to the Global South—demanding near-certainty from individual climate refugees while accepting probabilistic harm for institutional plaintiffs—creates an insurmountable barrier for those most vulnerable. The higher evidentiary threshold imposed on climate refugees forces them to demonstrate virtually inevitable harm before it occurs, creating a Catch-22 where protection becomes available only after it is too late. This inconsistency produces profound systemic injustices. It creates a temporal paradox where protection becomes available only after conditions have deteriorated to catastrophic levels, trapping refugees in a perverse waiting game where preliminary suffering—like Kiribati’s saltwater intrusion contaminating drinking water years before complete inundation—fails to meet arbitrary imminence thresholds. Given that the right to life is invoked even when an individual has reasonable cause to believe they are at risk, not only when deprivation of life is certain, this standard is irrational. Simultaneously, the scientific burden placed on individual asylum-seekers compared to wealthy institutional plaintiffs reveals a fundamental inequity; Massachusetts can marshal extensive resources to demonstrate climate impacts while displaced individuals from the Global South must somehow present comprehensive attribution studies connecting specific weather events to global emissions—an impossible standard given their limited resources and the inherent complexity of climate science. This standardization gap both reflects and reinforces international power imbalances, as high-emitting nations effectively serve as both perpetrators and judges, establishing legal frameworks that insulate themselves from responsibility while continuing behaviors that generate displacement. The resulting uncertainty undermines both refugee protection and climate action by keeping responses ad hoc and insufficient, leaving millions in legal limbo as they cross borders seeking safety, potentially triggering additional waves of displacement that could have been prevented through consistent recognition and protection. Perhaps most troublingly, this selective acceptance of climate science—recognizing identical projections when presented by wealthy states but dismissing them as speculative when asserted by vulnerable populations—constitutes a form of epistemic injustice that compounds the material injustices already faced by climate-vulnerable communities, cementing a legal doctrine where protection depends not on the validity of scientific claims but on who makes them.
Conclusion
Ultimately, the injustice lies in the variability. There is a clear discrepancy between the standards that are being used to measure climate harm, an issue that requires international standardization. Further, environmental degradation, causing evidenced, abject suffering that would otherwise serve as sufficient proof of persecution, is only selectively classified as not actual or imminent. While judicial discretion is useful and perhaps even a favorable model in determining the extent of this suffering, Cruz and Teitiota suggest that it is the lack of alignment with the framework of persecution rather than disbelief in the suffering itself that encourages dismissal of claims to climate change as a human rights violation and therefore dismissal of asylum. In a right-approach, an applicant’s arguable standing is that, first, a high-emitting country has contributed to global emissions through preventable means in a way that meaningfully raises the risk of environmental harm to that individual, and their country of origin has failed to or is unable to provide protections against environmental devastation. Next, the refusal to regulate emissions or rectify the damage of environmental harm is directly traceable to governmental action or inaction. And finally, a high-emitting country necessarily accepting asylees would prove favorable incentive to address the injury by reducing emissions (i.e. either one regulates or must accept natural consequences of uninhabitability of vulnerable areas). The benefit of this framework is that it offers judicial discretion based on the extent of environmental devastation rather than paradigmatic misalignment. This article is not advocating for blanket culpability of all high-emitting nations, but simply establishing the standing that petitioners to appear before a court that was not previously afforded to them. This is not to say that every high-emitting country has an obligation to every climate refugee and must open the floodgates, but rather to say that each climate refugee has locus standi to introduce a lawsuit. The capacity of nations to offer asylum to greater numbers of people is of concern to many; that said, if claims of asylum have standing, it is important that they be considered, regardless of whether or not the total volume of those offered asylum changes. The legal system is not intended to be used as a bludgeon for political will to artificially enforce capacities by excluding individuals from a system that would otherwise consider their experiences. The principle of justice as fairness is better upheld when victims of persistent structural violence, politically persecuted or otherwise, are presented a uniform foundation upon which to voice their grievances and be heard.
[1] OHCHR, Understanding Human Rights and Climate Change, (2015).
[2] Petition To The Inter-American Commission on Human Rights Seeking Relief From Violations Resulting from Global Warming Caused By Acts and Omissions of the United States – Climate Change Litigation, Climate Change Litigation (2025).
[3] Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948), International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 999 U.N.T.S. 171.
[4]Sean McAllister, There Could Be 1.2 Billion Climate Refugees by 2050. Here’s What You Need to Know, ZURICH (October 23, 2024)
[5] Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150, Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.
[6] Rana Balesh, Submerging Islands: Tuvalu and Kiribati as Case Studies Illustrating the Need for a Climate Refugee Treaty, 5 Barry U. Env’t & Earth L.J. 78 (2015).
[7] Massachusetts v. EPA, 549 U.S. 497 (2007).
[8] Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563.
[9] Id.
[10] Shea Flanagan, “Give Me Your Tired, Your Poor, Your Huddled Masses”: The Case to Reform U.S. Asylum Law to Protect Climate Change Refugees, 13 DePaul J. for Soc. Just. 1 (2019).
[11] Id.
[12] Aedan Raleigh, The Refugee Burden of Proof: Legal Gaps and Future Considerations for Climate Migrants, 43 PACE L. REV. 433 (2023).
[13] Id.
[14] Rana Balesh, Submerging Islands: Tuvalu and Kiribati as Case Studies Illustrating the Need for a Climate Refugee Treaty, 5 Barry U. Env’t & Earth L.J. 78 (2015).
[15] Mariah Stephens, The Great Climate Migration: A Critique of Global Legal Standards of Climate Change-Caused Harm, 23 Sustainable Dev. L. & Pol’y 16, 18 (2023).
[16] Teitiota v. Chief Executive of the Ministry of Bus. Innovation & Emp’t, [2015] NZSC 107, [2016] 1 N.Z.L.R. 173 (S.C.).
[17] UN Human Rights Committee Views Adopted on Teitiota Communication – Climate Change Litigation, Climate Change Litigation (2025).
[18] Convention Relating to the Status of Refugees, Id.
[19] Cruz v. Garland, 106 F.4th 141 (1st Cir. 2024).
[20] Massachusetts v. EPA, Id.