2 February 2026

One of the many important messages to emerge from the Nansen Initiative Protection Agenda concerned the need to close gaps in relevant legal frameworks: in other words, to enhance legal preparedness to address displacement in the context of disasters and climate change. Good-practice examples identified through sub-regional consultations over the preceding three years were, mostly, examples of States using discretionary migration measures to allow persons impacted by disasters to remain on their territories because it was not safe for them to return home. Nevertheless, in October 2015, 109 States endorsed the Protection Agenda’s recognition that, while in general the disaster context alone would not make a person a refugee, in some cases, refugee law and ‘similar protection under human rights law’ (based on the non-refoulement principle; para 47) could apply.

In 2015, the international legal landscape was uncertain and had yet to settle on a definitive position. In June 2013, shortly after the Nansen Initiative held its first-ever sub-regional consultation, which was in the Cook Islands, I issued the decision in AF (Kiribati). This decision, purposefully and informed by my participation in those consultations, began to move the legal needle by asserting the applicability of the non-refoulement principle to the climate change and disaster context and outlining some representative scenarios as to how it might become engaged – although the facts of that particular case did not result in a protection finding.

Fast forward to now, and the legal landscape is fundamentally different. In 2019, the UN Human Rights Committee issued its first view on the subject in Teitiota v New Zealand, agreeing that the non-refoulement principle could indeed become engaged in the disaster and climate change context. That case concerned the same applicant as in AF (Kiribati); again, on the facts, no protection need was found. Nevertheless, the general principle acknowledged there has now also been confirmed by the International Court of Justice in its 2025 Advisory Opinion on climate change, and likewise by the Inter-American Court of Human Rights.

Where are we now?

First and foremost, it seems that the legal genie is well and truly out of the bottle. While difficult questions remain about just how far the non-refoulement principle can extend when people cross an international border in the aftermath – or in anticipation – of a disaster or extreme climate impacts, so far as the law is concerned, there is no going back. The basic legal premise that the principle of non-refoulement is applicable to the disaster and climate context is now firmly established.

However, a stocktake of global judicial practice over the last 10 years presents something of a mixed picture. One study has highlighted an unwillingness by decision-makers to use what domestic legal tools are available to them, even when these explicitly make disaster impacts a ground for intervention. Such judicial reticence reflects the lingering legacy of the pre-Teitiota, pre-Protection Agenda legal paradigm that disasters are entirely ‘natural’ in their constitution and indiscriminate in their impacts. It may also reflect judicial unease at having to engage with a decision-making context that seems far removed from the classical ‘political’ refugee and one replete with uncertainty and scientific complexity.

However, there are encouraging examples of judges and decision-makers beginning to engage with the issue and to use the different legal tools available to them protect people from removal. For example, decisions in New Zealand and in Italy have explored how the disaster context can increase risks from non-State agents, as well as how the climate context increasingly intersects with conflict and poor governance to ground valid protection claims. A recent decision in the United Kingdom found that the impacts of climate change ‘contributed directly to the appellant’s vulnerability, mental illness, and “very significant obstacles” to his reintegration’, and that his removal would disproportionately interfere with his private life, allowing the decision-maker to apply a domestic humanitarian-oriented tool grounded in article 8 of the European Convention on Human Rights.

Another case has grappled with the difficult question of just how far into the future the decision-maker must peer in a claim grounded in slow-onset processes such as sea-level rise. This has proven to be a topic of some controversy, albeit with an emerging legal consensus that, while the risk of harm need not be imminent, policy and operational steps being taken to mitigate or adapt to climate change impacts must be taken into account when assessing risk of harm over longer time horizons.

This small but growing body of case law has contributed to the building of a positive feedback loop by providing the raw material for the development of judicial guidelines. As with other communities catalysed or innovated by the process surrounding the development of the Protection Agenda, a networked community of legal scholars and practitioners, many of whom were members of the Nansen Initiative’s Advisory Committee, came into being. Working alongside or with UNHCR, itself a member of the Committee, and the Envoy of the Chair, this community has worked collaboratively over the past decade to close the legal gap identified in the Protection Agenda.

In recent years, two significant judicial guidance documents have been developed to assist judges and decision-makers to better navigate the unfamiliar legal and factual terrain. The first was the 2024 Refugee Law Initiative Declaration on International Protection in the Context of Disasters and Climate Change (2024), and its accompanying Analytical Paper. The second was the 2025 document, International Protection for People Displaced across Borders in the context of Climate Change and Disasters: A Practical Toolkit, developed by a number of academic institutions in collaboration with UNHCR. National versions of the Practical Toolkit are also underway in Australia and the United Kingdom; guidance for the United States was produced in 2023.

Significantly, too, the issue has been included in the conference and training agenda of the International Association of Refugee and Migration Judges over the past decade. With interest growing among decision-makers, in 2023, the IARMJ established a working party on Climate, Migration and Protection Pathways. Wishing to demystify the topic for the busy and, possibly, still sceptical judge, this working party has begun to develop a judicial checklist outlining the key messages on a peer-to-peer basis.

Looking to the future

It remains to be seen in just what circumstances judges and decision-makers are called upon to decide protection claims grounded in disasters and climate change impacts.

Given the resounding failure of UNFCCC processes to cause necessary reductions in global greenhouse gas emissions, it is inevitable that more people will choose or be compelled to move across borders to escape the anticipated or actual impacts of climate-related hazards on their lives and livelihoods. Geo-physical hazards will also continue to play their part in some regions.

Whether the mere inability of an otherwise willing State to protect people from such hazards, without more, engages the non-refoulement principle remains moot: the recent judicial guidance does not explicitly go this far. Nor can it, as which side of the protection/humanitarian intervention legal ledger such cases will fall on will depend on the configuration of the domestic legal architecture by which the decision-maker is bound. Moreover, as observed in relation to the use of the non-refoulement principle to address cross-border movement in the context of the AIDS crisis, overly ambitious approaches on the protection side of the ledger risk the concertinaing of the system under the weight of its own logic. The current case-by-case, scenario-based approach – as foreshadowed in the Protection Agenda – seems better placed for judges to deliver sustainable, tangible protection gains. 

In reality, it is likely that, at scale, group-based, temporary protection extended through administrative decision-making may take many such cases off the judicial plate. Moreover, echoing the Protection Agenda’s call, some regional and sub-regional groups of States have in the last decade developed mobility frameworks or agreements which will make it easier for persons to freely move across borders in anticipation of or in response to the impacts of natural hazards, including climate-related ones. 

That said, another reality – already anticipated in the Protection Agenda – is that the non-refoulement principle will be part of the broader legal response to climate change. Judges and other decision-makers are already being called upon to determine individual cases, and this will continue. Although international jurisprudence remains in its infancy, those judges and decision-makers who are engaging deeply with the issue have shown themselves to be adept at conducting sophisticated risk assessments across a range of areas and intersecting drivers of displacement, and these will stand as important references for further judicial engagement.

Furthermore, there remains some relatively unexplored legal terrain. While the complaint to the UN Human Rights Committee concerned only the right to life, it is the prohibition on cruel, inhuman or degrading treatment which potentially offers claimants more immediate prospects of success. There are already indications that national courts in Germany and Austria are using this legal norm (as it appears within the European regional protection framework) to prohibit removal where disaster impacts form part of the overall ‘dire humanitarian situation’ in the country of origin. So, too, in New Zealand.

There are also decisions from the United Kingdom and New Zealand that map how the discriminatory denial or distribution of disaster relief, and the arbitrary denial of necessary foreign humanitarian assistance, can constitute forms of cruel, inhuman or degrading treatment. Given that natural hazards often impact populations governed by authoritarian regimes, these decisions may yet provide further opportunities for cases to succeed on non-refoulement grounds, all the more so given that States’ obligations to protect persons in the event of disasters may soon be codified in an international treaty.

Further room for expanded judicial engagement derives from regional protection frameworks in Africa and the Americas, which include in their refugee definitions flight from events seriously disturbing public order. Given the scale of disaster displacement in these regions, including cross-border displacement, we may yet see a growing number of successful cases applying these broader definitions.

In summary, while the clarion call in the Protection Agenda to enhance legal preparedness remains a work in progress, there has been considerable movement over the past decade. The international judicial community is now far better equipped to apply protection principles in the context of disasters as we head into a more climate-impacted future.

Bruce Burson is a senior member of the New Zealand Immigration and Protection Tribunal.