Falling Through the Protection Gaps: Inappropriate Protection of Climate Displaced Persons in the International Refugee Legal Structure

The nexus between climate change and forced human mobility is recognised within the international climate legal framework through the vehicle of loss and damage; however, this nexus is absent in international refugee law. Cross-border climate displaced persons have not yet received official legal status nor protection as a consequence of this legal void in international refugee law. This is largely due to two interconnected and unresolved issues: first, definitional controversy in categorising climate-forced cross-border mobility; and second, the high threshold set by Article 1A(2) of the Refugee Convention inclusion requirements to receive international protection. Cross-border climate displaced person claims remain undermined by these "protection gaps" in international refugee law. This paper investigates whether the complex interrelationship between human vulnerability, displacement, and climate change is capable of establishing a "tenable pathway to Refugee Convention protection". 1 The application of attribution science will be recommended in this paper as a novel approach to support the realisation of this nexus in international refugee law. Attribution science functions to establish the causal link between climate change impacts and the consequent loss and damage. It has the capacity to determine responsibility for harms and the potential to reinforce the validity of international protection claims submitted by cross-border climate displaced persons. This utilisation of attribution science aims to assist future cross-border climate displaced persons in attaining legal clarity and certainty on their status in international refugee law. In doing so, this paper argues the current structure of international refugee law offers inappropriate protection to cross-border climate displaced persons.