Losses and damages due to climate change can be divided into two categories: Economic losses, which include the loss of resources, goods and services that can be generally traded in the marketplace, loss of income (including agricultural production and tourism, and business) and physical losses (including infrastructure and property); and non-economic losses, which are goods that cannot be generally traded in the marketplace, including non-economic losses to individuals (life, health and human migration); societal non-economic losses (cultural heritage, territory, indigenous knowledge, social and cultural identity); and environmental losses (biodiversity and ecosystem services). It can therefore be argued that climate change-induced human migration has been identified as a non-economic loss.See United Nations Framework Convention on Climate Change (UNFCCC), “Non-economic losses in the context of the work program on loss and human migration”. context of the work programme on loss and damage”, FCCC/TP/2013/2, Oct. 9, 2013, https://unfccc.int/resource/docs/2013/tp/02.pdf.

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The study of climate refugees from the perspective of international law began at the end of the twentieth century, and has since undergone rapid development, with a large number of new research results.

For instance, based on metrics such as “carbon dioxide emissions per capita,” “ecological footprint,” “gross national income,” and “human development index,” Bayes Ahmed estimated that Australia and the United States should each assume a 10% share of the global climate refugee burden. Following this, Canada and Saudi Arabia would each contribute 9%, with South Korea at 7%, and Russia, Germany, and Japan at 6%. Tracey Skillinton advocates for a comprehensive consideration of factors such as population density and resource availability, emphasizing the simultaneous establishment of incentive systems for transnational cooperation, such as tax and fund mechanisms for natural resource redistribution. Katrina Miriam Wyman advocates for the use of natural resource capacity (land development/population density) and income wealth level (GDP per capita) as criteria for the allocation of responsibility. She analyzes the potential 300,000 future climate migrants from the Maldives as an example of how to distribute the responsibility among 34 OECD countries, China, Brazil, India, and Russia. Furthermore, Mathias Risee proposes the “Polluter Pays Principle + Ability to Pay Principle,” which allocates the burden of climate migration among countries based on historical per capita emissions contributing to the consequences of climate change and the level of per capita income in country. See Bayes Ahmed, “Who Takes Responsibility for the Climate Refugees?”, International Journal of Climate Change Strategies and Management, Vol. 10, No. 1, 2018, pp. 5–7; See Katrina Miriam Wyman, “Sinking Islands. “Property in Land and Other Resources”, edited by Daniel H. Cole & Elinor Ostrom, Puritan Press, 2012, pp.460–464; Tracey Skillinton, “Reconfiguring the Contours of Statehood and the Rights of Peoples of Disappearing States in the Age of Global Climate Change”, Social Sciences, 2016, Vol. 5, No. 3, pp. 55–56; Mathias Risee, “The Right to Relocation: Disappearing Islands Nations and Common Ownership of the Earth”, Ethics and International Affairs, 2009, Vol.23, No.3, p.296.

See Intergovernmental Panel on Climate Change (IPCC). 2014: Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, Geneva, Switzerland, 2015, pp.56–74. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change; IPCC: Geneva, Switzerland, 2015; pp.56–74.

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See Tim Stephens, “Storm Warnings: Twenty-First Century Challenges for the Law of the Sea”, Sydney Law School Legal Studies Research Paper No. 16/21, Mar., 2016, http://ssrn.com/abstract=2747779.

See Intergovernmental Panel on Climate Change (IPCC), 2014: Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, Geneva, Switzerland, 2015, pp. 21, 60–62.

Rosemary Rayfuse, “W(h)ither Tuvalu? International Law and Disappearing States”, University of New South Wales Faculty of Law Research Series No. 9, 2009, p. 1. Law Research Series No. 9, 2009, p. 1.

As early as 1999, Kiribati had already lost parts of its rocky reefs to permanent subsidence below the surface and lost two uninhabited islands, Tebua Tarawa and Abanuea. （See Orion Magazine—The Republic of Kiribati Islands Faces an Uncertain Future）In 2004, the South Asian tsunami submerged about two-thirds of the Maldives for a time.(See https://en.wikipedia.org/wiki/Effect_of_the_2004_Indian_Ocean_earthquake_on_the_Maldives#:~:text=In%20the%20independent%20republic%20of%20Maldives%2C%20all%20islands,Indian%20Ocean%20earthquake%20on%2026%20December%202004.%20) In 2006, India’s island of Lohachala became the first island in the world to be permanently inundated by sea water with its own nationals (around 10,000) on an island. （See Independent Online Edition > Environment (archive.org)） The Solomon Islands also had five islands completely submerged under the sea. （https://edition.cnn.com/2016/05/10/world/pacific-solomon-islands-disappear/index.html） Since 2007, nationals of the island of Kathrite in Papua New Guinea have been evacuating as their land has been submerged.

Statistically, the frequency of Category 4+ hurricanes in the western Pacific Ocean due to climate change has risen from 25% in 1975–1989 to 41% in 1990–2004. See P. J. Webster (eds.), “Changes in Tropical Cyclone Number, Duration, and Intensity in a Warming Environment”, Science, Vol. 309, No 5742, 2005, p. 184. Duration, and Intensity in a Warming Environment”, Science, Vol. 309, No. 5742, 2005, p. 1846.

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See Norwegian Refugee Council/Internal Displacement Monitoring Centre (NRC/IDMC), “2018 Global Report on Internal Displacement “, May.16, 2018, https://www.internal-displacement.org/global-report/grid2018/downloads/2018-GRID.pdf.

See Internal Displacement Monitoring Center, “Technical Paper: The Risk of Disaster-Induced Displacement - South Pacific Island States “, Jan. 1, 2014, https://www.alnap.org/help-library/technical-paper-the-risk-of-disaster-induced-displacement-south- pacific-island-states.

See European Environment Agency, Vulnerability and Adaptation to Climate Change in Europe, European Environment Agency, 2006, pp.22–23, https:// meteo.lcd.lu/globalwarming/EEA_reports/vulnerabilty_and_adaptation_technical_report_7_2005.pdf.

See Intergovernmental Panel on Climate Change (IPCC), Climate Change 2014: Impacts, Adaptation and Vulnerability: Working Group II Contribution to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, Cambridge University Press, 2014, p.1060.

See International Organization for Migration (IMO), “World Migration Report 2020”, Nov. 2019, https://publications.iom.int/system/files/pdf/wmr_2020.pdf.

See United Nations University Institute for Environment and Human Security (UNU-EHS), “Tuvalu: Climate Change and Migration,” Nov. 2016, 2016. https://collections.unu.edu/eserv/UNU:5856/Online_No_18_Tuvalu_Report_161207_.pdf; “Nauru: Climate Change and Migration”, Nov., 2016, https://collections.unu.edu/eserv/UNU:5902/Online_No_19_Nauru_Report_161207.pdf; “Kiribati: Climate Change and Migration”, Nov., 2016, https://collections.unu.edu/eserv/UNU:5903/Online_No_20_Kiribati_Report_161207.pdf.

For example, some scholars predict that the number of people displaced globally due to climate change will be between 200 million and 1 billion by 2050. See Frank Laczko, Christine Aghazarm, “Migration, Environment and Climate Change. Assessing the Evidence”, 2009, https://publications.iom.int/system/files/pdf/migration_and_environment.pdf.

The 2018 Global Compact on Refugees refers to “climate, environmental degradation and natural disasters, while not the cause of refugee movements, are increasingly interacting with refugee drivers.” See General Assembly, “Part II Global Compact on Refugees of the Report of the United Nations High Commissioner for Refugees”, A/73/12 (Part II)), Sept. 13, 2018, https://www.unhcr.org/gcr/GCR_English.pdf.

See Keely Boom, “The Rising Tide of International Climate Litigation: An Illustrative hypothetical of Tuvalu v. Australia”, in Randall S. Abate and Elizabeth Ann Kronk eds., Climate Change and Indigenous Peoples: The Search for Legal Remedies, 2013, pp.411–433.

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According to the Intergovernmental Panel on Climate Change (IPCC) Report published on Aug9,2021, emissions of greenhouse gases from human activities are responsible for approximately 1.1°C of warming since 1850–1900, and finds that averaged over the next 20 years, global temperature is expected to reach or exceed 1.5°C of warming. The report projects that in the coming decades climate changes will increase in all regions. For 1.5°C of global warming, there will be increasing heat waves, longer warm seasons and shorter cold seasons. At 2°C of global warming, heat extremes would more often reach critical tolerance thresholds for agriculture and health, the report shows. But it is not just about temperature. Climate change is bringing multiple different changes in different regions – which will all increase with further warming. These include changes to wetness and dryness, to winds, snow and ice, coastal areas and oceans. (See https://www.ipcc.ch/2021/08/09/ar6-wg1-20210809-pr/n).

The impacts of climate change affect millions of people in the enjoyment of a wide range of human rights, including the rights to food, water and sanitation, health and adequate housing. Migrants fleeing the effects of climate change do not do so out of choice, but out of a need to escape from conditions that do not provide even the most basic rights. Throughout their migration, they face xenophobia, poor access to food, water, health care and housing, and the ever-present threat of arbitrary detention, human trafficking, violent attacks, rape and torture.See UN Human Rights Council (UNHCR), “Summary of the panel discussion on human rights, climate change, migrants and persons displaced across international borders”, U.N. Doc. A/HRC/37/35, Nov. 14, 2017, https://undocs.org/A/HRC/37/35.

See Sheila Watt-Cloutier, 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, Dec. 7, 2005, http://law.uh.edu/faculty/thester/courses/ICC_Petition_7Dec05.pdf.

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International human rights law extends the scope of States’ protection obligations from refugees to persons at risk of arbitrary deprivation of life, torture or cruel, inhuman or degrading treatment or punishment. This is often referred to as “complementary protection” because it provides protection that is additional to that provided by the Refugee Convention. These protections are derived from the International Covenant on Civil and Political Rights, the Convention on Economic, Social and Cultural Rights and the Convention against Torture, and are also embodied in the European Convention on Human Rights. (Article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment).

Jane M. The Emerging New Zealand Jurisprudence on Climate Change, Disasters and Displacement.  PKU Int. Compar. Law Rev. 2016, 1, 75 (in Chinese). [Google Scholar]

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See Jane McAdam, Environmental Migration Governance, UNSW Law Research Paper No. 2009-1, Feb. 28, 2009, https://law.bepress.com/cgi/viewcontent. cgi?article=1143&context=unswwps-flrps09.

Black’s Law Dictionary even provides a conceptual definition of a “climate refugee” as “a person who has been displaced as a result of a severe weather event or climate change (e.g., flood, drought).” See Refugee, Black’s Law Dictionary (10th ed. 2014).

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As new international situations have evolved in recent years, the concept of refugee has been appropriately expanded in the documents of a number of international organizations or in regional treaties. The United Nations Children’s Fund (UNICEF), for example, defines a refugee as “a person who has left his or her country of origin because he or she is no longer able to live in his or her homeland or because he or she fears some kind of harm, which may include war or natural disasters such as earthquakes and floods.” The 1969 Organization of African Unity (OAU) Convention on Refugees and the 1984 Cartagena Declaration, which include displacement caused by events that jeopardize public order, also imply, to some extent, that “environment” and “public order” can be considered as distinct from other factors, such as social, economic, social and cultural factors. These factors can be juxtaposed with other factors such as social, political, war and economic factors.

Specifically, on the one hand, countries of origin of refugees tend to bargain in a moral and humanitarian manner to extend protection to asylum seekers, while on the other hand, other countries are reluctant to take on more responsibility.See Stellina Jolly and Nafees Ahmad, “Climate Refugees under International Climate Law and International Refugee Law: Towards Addressing the Protection Gaps and Exploring the Legal Alternatives for Criminal Justice,” ISIL Year Book of International Humanitarian and Refugee Law, Vol. 14, 2014–2015, p. 237. 

See Jane McAdam, Supra note 45.

See Rebecca Dowd, Jane McAdam, “International Cooperation and Responsibility Sharing to Combat Climate Change: Lessons for International Refugee Law,” Melbourne Journal of International Law, Vol. 18, No. 2, 2017, pp. 180–218.

See Bonnie Docherty, Tyler Giannini, “Confronting a rising tide: A Proposal for a Convention on Climate Change Refugees”. Harvard Environmental Law Review, Vol. 33, 2009, pp. 393–394.

See Liang Shuying, International Refugee Law, Intellectual Property Press, 2009 edition, p. 148 (in Chinese).

The United Nations Commission on Human Rights has adopted resolutions authorizing the United Nations High Commissioner for Refugees (UNHCR) to deal with internally displaced persons, but has not yet explicitly authorized the International Refugee Agency (UNHCR) or the Office of the High Commissioner for Refugees (UNHCR) to respond to climate refugees.See General Assembly, Res. 47/105, U.N. Doc. A/RES/47/105, Dec. 16, 1992, at § 14, http//www.un.org/documents/ga/res/47/a47r105.htm.Although UNHCR’s Executive Committee has advocated for the adoption of the refugee definition set out in the 1969 Organization of African Unity Convention on Refugees and the 1984 Cartagena Declaration, which could encompass persons displaced by climate refugees, UNHCR has consistently refused to provide relief to the entire population of climate refugees.See Elisa Fornale and Curtis F J Doebbler, “UNHCR and protection and assistance for the victims of climate change”, The Geographical Journal, 2017, pp.329–335.

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The Global Compact for Refugees provides for solutions to the climate refugee problem in a number of articles. Examples include “disaster risk reduction” (Article 9), preparedness measures (Articles 52, 53), the importance of global, regional and national mechanisms for early warning and early action (Article 53), and “evidence-based projections of future population movements” and “integration of refugees into disaster risk reduction strategies” (Article 79).

See UN Human Rights Council, “Summary of the panel discussion on human rights, climate change, migrants and persons displaced across international borders”, U.N. Doc. A/HRC/37/35, Nov. 14, 2017, https://undocs.org/A/HRC/37/35.

See Ekardt, F.; Bärenwaldt, M.The German Climate Verdict, Human Rights, Paris Target, and EU Climate Law. p.4.

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In accordance with Article 4, paragraph 1 (b), of the UNFCCC, all Parties shall take measures to facilitate adequate adaptation to climate change. Paragraph 4 of the same Article provides that developed country Parties and other developed Parties included in Annex II shall also assist developing country Parties that are particularly vulnerable to the adverse effects of climate change to meet the costs of adaptation to those adverse effects.

Because migration and resettlement are used as an adaptation strategy, climate displacement can be analyzed through an adaptation framework. However, understanding climate displacement through the lens of adaptation may oversimplify the complexity of the issue.

The Warsaw International Mechanism for Loss and Damage associated with Climate Change was established at the 2013 Warsaw Climate Conference at the urging of small island States to address loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to the adverse effects of climate change, especially the least developed countries. The mechanism has three main functions: to increase knowledge and understanding of comprehensive risk management approaches to address loss and damage associated with the adverse effects of climate change, including the impact of slow onset events; to enhance dialogue, coordination, coherence and synergies among relevant stakeholders; and to enhance action and support, including financial, technological and capacity-building action and support, to address loss and damage associated with the adverse effects of climate change. (See https://unfccc.int/topics/adaptation-and-resilience/workstreams/loss-and-damage/warsaw-international-mechanism#:~:text=The%20COP%20established%20the%20Warsaw%20International%20Mechanism%20for,change%20at%20COP19%20%28November%202013%29%20in%20Warsaw%2C%20Poland).

See https://unfccc.int/sites/default/files/resource/5yr_rolling_workplan.pdf p.11 Strategic workstream (d).

In line with the Recommendations on Comprehensive Approaches to Avoid, Reduce and Resolve Displacement Associated with the Adverse Effects of Climate Change, the WIM Executive Committee recommends that Parties be invited to consider developing laws, policies and strategies in the context of human migration, taking into account human rights obligations and other standards and obligations under international law; strengthening research and data collection, risk analysis and information sharing while ensuring the participation of affected and at-risk communities; strengthening preparedness and early warning; and finding durable solutions for IDPs. The Executive Committee also recommended the continued development of good guiding principles and practices, and called for enhanced cooperation to avoid duplication of efforts on climate displacement and to promote coherence within the United Nations system in addressing population movements in the context of climate change.See Task Force on Displacement (TFD), “Report of the Task Force on Displacement”. of the Task Force on Displacement,” Sept. 17, 2018, https://unfccc.int/sites/default/files/resource/2018_TFD_report_17_Sep.pdf.

Parties hold different attitudes on the relationship between the issues of adaptation and loss and damage, with developing countries supporting the independence of loss and damage from mitigation and adaptation, while developed countries advocate the inclusion of loss and damage in the adaptation framework. See Ma Xin et al., “The Progress on Loss and Damage Negotiation for Addressing Climate Change Under the UNFCCC”, Progress in Climate Change Research, No. 5, 2013, pp. 357–361 (in Chinese).

Stellina J, Nafees A. Climate Refugees under International Climate Law and International Refugee Law: Towards Addressing the Protection Gaps and Exploring the Legal Alternatives for Criminal Justice.  ISIL Year Book Int. Hum. Refug. Law 2014, 14, 227–235. [Google Scholar]

Examples include land that has been or will be lost due to sea level rise, loss of arable land due to protracted droughts, lives that have been or will be lost due to an increasing number of severe extreme weather events, etc. See Roda Verheyen and Peter Roderick, “Beyond adaptation: the legal duty to pay compensation for climate change damage”, Nov., 2008, https://www.mendeley.com/catalogue/b6531cce-4468-304b-a661 -dc41a3b76fd0/.

See Task Force on Displacement (TFD), “Report of the Task Force on Displacement,” Sept. 17, 2018, https://unfccc.int/sites /default/files/resource/2018_TFD_report_17_Sep.pdf.

There is a loophole in the international treaty system on climate change regarding compensation for climate change damages. See Jiang Xiaoyi and Qin Tianbao, “A Brief Analysis of the Issue of Compensation for Transboundary Damage Caused by Climate Change”, Learning Forum, No. 11, 2012, p. 73 (in Chinese).

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The preamble to the Paris Agreement states, “Recognizing that climate change is a common concern of humankind, Parties shall respect, promote and take into account their respective obligations with respect to human rights, the right to health, the rights of indigenous peoples, the rights of local communities, the rights of migrants, the rights of the child, the rights of persons with disabilities, the rights of persons in vulnerable situations, the right to development, and the obligations of the parties to gender equality, the empowerment of women and intergenerational equity in taking action to address climate change”.

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The traditional view is that respect for human rights is not a fundamental principle of international law. However, some scholars believe that the consideration of whether a principle is a fundamental principle cannot be based solely on express legal documents such as the Charter of the United Nations and the Declaration of Principles of International Law, and that more evidence of the existence of such a principle should be found in international practice. See Xiao Yongping and Yuan Faqiang, “The Development of International Law and a Harmonious World in the New Century”, WU International Law Review, No. 1, 2010, p. 14 (in Chinese).

Article 2 of the UNFCCC states that “greenhouse gas emissions should be contained within levels sufficient to enable ecosystems to adapt naturally to climate change, to ensure that food production is not threatened, and to enable economic development to proceed in a sustainable manner within a time frame”.

Article 3 of the UNFCCC sets out five basic principles of climate law in turn, including: the principle of common but differentiated responsibilities and respective capabilities; the principle of taking into account the special circumstances of developing countries; the principle of risk prevention and cost-effectiveness; the principle of sustainable development; and the principle of international cooperation. In relation to the principle of sustainable development, Article 3.4 of the UNFCCC states that “Parties have the right to, and shall, promote sustainable development. Policies and measures to protect the climate system from anthropogenic changes should be appropriate to the specific circumstances of each Party and should be integrated into national development plans, taking into account that economic development is essential for the adoption of measures to address climate change".

These include providing climate resilience in countries of origin through disaster risk management measures to radically reduce climate migration; facilitating the upgrading of host countries’ resources and capacities through international cooperation mechanisms to ensure that they are not undermined in their efforts to achieve sustainable development goals; and providing resources and expertise to support them in removing obstacles to return and creating conditions conducive to voluntary repatriation or exploring the conditions for the naturalization of refugees, among others. (See GLOBAL COMPACT ON REFUGEES United Nations • New York, 2018. pp. 88).

See General Assembly, “Transforming our world: the 2030 Agenda for Sustainable Development,” A/RES/70/1, Sept. 25, 2015, at https://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E.

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Cao M. Supra note 88, 34–38 (in Chinese).

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Gong Y. Supra note 41, 75–85 (in Chinese).

The basic idea of this view is that, in the process of the transformation of primitive societies into modern political societies, not only did they give rise to a system of private property rights (both private property rights in the sense of domestic law and territorial sovereignty and permanent sovereignty over natural resources in the sense of international law), but they also retained the same kind of limitation on property rights as pre-institutional rights of nature, i.e., the recognized right of private property in the national and global context is not an absolute and unfettered right, but rather it has always been limited in its scope and effect by the right of emergency shelter and the right of emergency refuge. Thus, in the event of a climate refugee tragedy, the preconditions implicit in humanity’s agreement on the property rule are triggered, the various natural resources of the planet are restored to their original state of communion (in order to sustain the basic survival of all human beings), and the climate refugees can claim their original collective ownership of the planet’s resources and use the resources appropriated by others in order to achieve self-preservation.See Katrina Miriam Wyman, “Sinking Islands,” in Daniel H. Cole and Elinor Ostrom eds. Property in Land and Other Resources, Puritan Press, 2012, pp. 449–450; Mathias Risee, “The Right to Relocation: Disappearing Islands Nations and Common Ownership of the Earth”, Ethics and International Affairs, Vol. 23, No. 3, 2009, pp. 283–294.

Modern international law has established the self-determination of peoples as a fundamental principle of international law, the basic meaning of which is: “All peoples under alien colonial domination, foreign occupation and subjugation have the right to decide for themselves their own destiny, their own political status and to conduct their internal and external affairs independently, and this right shall be respected by the international community, and all States shall have the duty not to hinder, interfere with or deprive them of this right in any way. Any failure to do so shall constitute an internationally wrongful act for which the State concerned shall bear international responsibility. The peoples and nationalities of these countries have the right to conduct their internal and external affairs independently and autonomously, the right to choose their preferred political and social systems and the right to develop their own economic, social and cultural activities independently. With regard to these rights, all other countries are obliged to respect them without interference.” See Yang Zewei, “On National Self-Determination and State Sovereignty in International Law”, Legal Science: Journal of Northwestern University of Politics and Law, No. 3, 2002, p. 40 (in Chinese).

While the Global Compact on Refugees covers the issue of refugees due to climate change, the fact that the Compact is currently only an international initiative and is not mandatory and binding determines that states may only take the limited measures contained in the Compact to safeguard the rights of climate refugees.

See UN High Commissioner for Refugees (UNHCR), “In Harm’s Way: International Protection in the Context of Nexus Dynamics Between Conflict or Violence and Disaster or Climate Change”, Dec., 2018, https://www.refworld.org/docid/5c2f54fe4.html.

He J. The Human Rights Law Dimension of Climate Change.  Hum. Rights 2015, 5, 84–101 (in Chinese). [Google Scholar]

The basic meaning of the principle of non-refoulement is that states are prohibited from refusing to receive climate refugees or returning them to territories where their lives are at serious risk, specifically not to be returned to the territory or borders of a country where they are unable to stay or reside due to environmental degradation caused by anthropogenic climate change. See Sun H. Research on the Right to Movement of Climate Refugees. PhD Thesis, Wuhan University, Wuhan, China, Jun. 1, 2013, pp. 74–78 (in Chinese).