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Elizabeth Ferris and Jonas Bergmann

This article explores alternative ways that legal and normative frameworks can be used to uphold the rights of those who are displaced internally or across borders in the context of anthropogenic climate change. In particular, we argue that more efforts should be focused on developing soft law rather than trying to fit those displaced because of the effects of climate change into existing legal frameworks. The present hard law system governing the movement of people is not equipped to handle the complexities of population movements resulting from the effects of climate change, and an adequate transformation of these often static legal regimes is improbable. By contrast, soft law offers a number of advantages particularly well suited to the characteristics of those who move because of the effects of climate change and who currently fall into the gaps between protection frameworks. On the downside, soft law norms are not binding and the multiplicity of such initiatives may contribute to a fragmentation of protection systems, resources and attention. Therefore, the present article concludes by arguing for a two-track approach in which both soft and hard law contributes to the protection of those displaced in the context of climate change. On the one hand, in order to address some of the current protection gaps, existing, emergent and new soft law needs to be used and implemented more thoroughly. At the same time, ways forward also include encouraging the more effective and dynamic implementation of hard law, especially through regionalization, complementary protection and the deployment of some features of emerging climate change regimes.