![handle is hein.journals/tranhurrv10 and id is 1 raw text is: McDonnell: Falling Through the Protection Gaps: Inappropriate Protection of
FALLING THROUGH THE PROTECTION GAPS: INAPPROPRIATE PROTECTION
OF CLIMATE DISPLACED PERSONS IN THE INTERNATIONAL REFUGEE LEGAL
STRUCTURE
NISCHALA MCDONNELL*
Abstract
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 ]A(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 .' 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.
* PhD Candidate, Macquarie Law School, Macquarie University, Australia.
1 Jenny Poon, Drawing upon international refugee law: the precautionary approach to protecting climate change-
displaced persons in Simon Behrman and Avidan Kent, eds, Climate Refugees ' Beyond the Legal Impasse? (London:
Routledge, 2018) at 162; Ioane Teitiota v Chief Executive of the Ministry of Business Immigration and Employment
[2013] NZHC 3125 at 27 ('Teitiota ').
Published by Osgoode Digital Commons, 2023
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