Are the Pacific’s Climate Migration Experiments a Preview for the World?

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CHAPTERS 

[00:02:48]: The Australia–Tuvalu agreement and its approach to climate-related migration 

[00:04:49]: Governance considerations: sovereignty, consultation, and regional dynamics 

[00:06:43]: The scale of new mobility pathways and questions of expansion 

[00:10:14]: New Zealand’s proposed climate visa and lessons from its withdrawal 

[00:12:04]: The Pacific Access Category and existing labor mobility pathways 

[00:18:09]: The Teitiota case and the role of international law in climate-related protection claims 

[00:26:24]: The Pacific Regional Framework on Climate Mobility and its broader implications 

TRANSCRIPT
[00:00:03.11] 

Hello from the Migration Policy Institute. This is Changing Climate, Changing Migration. This is a podcast exploring what climate change means for migration around the world. I'm your host, Julian Hattem. I'm the editor of the Migration Information Source, which is MPI's online magazine providing a range of straight ahead timely analysis, data and insights on migration trends worldwide. You should sign up for free bi-monthly newsletter online at migrationinformation.org. Around the world, there are very few countries that are interested in creating new migration pathways focused solely on an individual's vulnerability to climate change. But one or two countries are. In the last couple of years, Australia, New Zealand and some Pacific island nations have experimented with innovative policies to help people experiencing the impacts of climate change, particularly sea level rise. They haven't always been a success, but they have provided important demonstrations of ways that countries could consider new climate migration pathways if they so chose. To help me make sense of some of the policy experiments, I'm joined Today by Jane McAdam. Jane is the head of the Kaldor Centre for International Refugee Law in Sydney and a leading figure on international refugee law, especially regarding climate related displacement.

[00:01:30.21] 

Jane, thank you so much for coming on the podcast. I am delighted to have you here today.

[00:01:34.21] 

Oh, it's a great pleasure to join you.

[00:01:37.14] 

So I want to talk about some particular policy experimentation and pathways taking place today, but I want to start by taking a step back. In most regions of the world, there is very little thought to creating new immigration pathways, especially specifically predicated on climate change, I guess. What do you think is different about Oceania and some of the Pacific islands?

[00:01:59.17] 

Well, I suppose the obvious point, which is the unfortunate one, is that many Pacific island countries are well and truly experiencing the impacts of climate change with more frequent disasters, more severe disasters, with the impacts of sea level rise interacting with the more sort of sudden onset hazards that we're seeing playing out. So in one sense, this is very much an issue that people experiencing at the present time and of course are very concerned about the future impacts as well. But I think too there's been a lot of international attention around this region and so that too has amplified, I suppose the focus in a way on what Pacific countries are doing and advocating for.

[00:02:43.16] 

So let's talk about what they're doing. I guess most recently in late 2023, Australia and Tuvalu announced a deal that has been described as the world's first ever bilateral climate migration deal. The descriptions are that this is a very big thing. I guess what is in the agreement and why is it such a big deal if it is.

[00:03:03.11] 

So this treaty was announced at the Pacific Islands Forum late last year, and I think it came as a surprise to pretty much everybody, not least because the Pacific Islands Forum at the same meeting also adopted a Pacific regional framework on climate mobility. And it was somewhat overshadowed by this bilateral deal that. That was heralded with great fanfare in the media. Now, it's a treaty between Tuvalu and Australia, but in essence, part of the treaty was an agreement that every year Australia would enable 280 people from Tuvalu to migrate to Australia, presumably as you know, on a permanent basis, so that they would be able to become permanent residents and in turn take up Australian citizenship should they so desire. And it would enable people to move, to work, to live in Australia. They would have access to education, to Social Security benefits and the like. So this was new in the sense that it was framed in the context of climate change and sort of future impacts that Tuvalu might experience. So even though the visa itself doesn't have a particular name yet, it's very much framed in the context of climate change, which is, I think, why everybody was saying this is a really, really new thing.

[00:04:23.11] 

I think some of the things that have been of concern, though, within Tuvalu is firstly the lack of consultation, which is indeed very problematic. Obviously, if people are to move, and this is meant to be a voluntary arrangement, nobody is forcing people to move. Nor is this akin to a, you know, protection, refugee type protection visa. It's much about voluntary migration. But I think there's consternation that this, that people weren't themselves consulted about it. But the other aspect to the treaty involves security arrangements whereby Australia, in effect, has a veto over other arrangements that Tuvalu might seek to enter into. And, you know, the elephant in the room is, is China. So I think some people were very concerned that effectively Tuvalu was now, you know, at the behest of the Australian government in terms of what sorts of arrangements it might enter into. My understanding is that the request itself or the framing itself was Tuvalu's request that the request for, you know, not only the security arrangement, Australia's assurance that it would assist in the case of disaster, as well as the migration aspect was apparently all Tuvalu's request to Australia. It wasn't Australia saying, well, we'll do this in exchange for that.

[00:05:41.22] 

But as I say, the, you know, the detail is still to be worked out. We've only got the. The kind of bare bones of the agreement in the treaty itself.

[00:05:50.09] 

I Think it's important there that you discuss some of the kind of opposition or at least controversy or political dynamics going on in Tuvalu. Because especially from a top line level, it can be easy to overlook. It seems like a lot of these, these are very complicated decisions. Right? These are very complicated political back and forth bilateral agreements that happen that are not always universally received. Which is to say, I guess, in other words, people don't always, people are not often desirous to move and are not always desperate for pathways to move. But I guess I want to, I want to focus a little bit, discuss the mobility aspect. How can we look about this proposal as we understand it? 280 people is not that many people in the grand scheme of things. Is this, I mean, is it fair to see this as a sort of an experiment that could inform future climate mobility pathways? Is it one part of this broader geopolitical deal? I guess, yeah. How can we think about the mobility piece in particular?

[00:06:46.07] 

Well, I think notwithstanding the concern from within Tuvalu that this was a deal sprung upon them, it is consistent with a lot of calls, including from people within Tuvalu and elsewhere in the Pacific for voluntary migration pathways. So I mean, if we go back to the Nansen Initiative on Disaster Induced Cross Border Displacement when it released its protection agenda that 109 governments endorsed back in 2015, one of the, or perhaps the kind of central piece of that was that we need a toolbox approach. So there's no one size fits all solution or response to movement in the context of climate change and disasters. But rather we need to have a whole range of measures that are being implemented in different ways in different regions, but not as either or, rather as kind of complementary pieces in a puzzle. And so they include adaptation within, you know, the place where you are. I mean, and sorry, I should say overarching point is mitigation, of course that needs to be happening.

[00:07:47.11] 

But then we've got adaptation, greenhouse gasses reducing.

[00:07:50.14] 

Yeah, exactly.

[00:07:51.08] 

More renewable energy.

[00:07:52.13] 

Yeah, yeah. But adaptation, disaster risk reduction measures, addressing displacement where it does occur, whether that's within a country or across international borders, trying to avert that displacement, of course, through adaptation and so on, and then looking at migration as a form of adaptation where it's what people desire, and then looking at planned relocations both in terms of as kind of preempting future displacement so that people are moved out of harm's way before disaster strikes, as well as a so called durable solution if people have been displaced and can no longer go home. And most of the Relocations or in fact all the relocations we've seen in recent years have been internal. Whether they ultimately extend to cross border is a huge question and involves multiple challenges. So I think within this context, what we've seen in the Australia-Tuvalu arrangement is something that, that certainly fits within this, this toolkit approach. It's also mentioned in the Pacific Regional Framework on Climate Mobility, which is that instrument I mentioned that was also adopted in November last year by the leaders of the Pacific Islands Forum. And you know what's interesting is if you go back even 30 years, I remember interviewing, not 30 years ago, interviewing the

[00:09:11.13] 

a former Prime Minister of Tuvalu who was in office some three decades ago and he mentioned that at that time he had been in discussions with Australia's then Prime Minister Paul Keating about possible migration opportunities for Tuvaluans to Australia, even raising the prospect of purchasing land. And at that point in time it was a no go. There have been perennial proposals from Tuvalu and other countries about buying land in Australia or elsewhere about prospects of special migration visas. But this is really certainly with Australia, the first that we've seen material. Well, maybe materialize... At least the farthest

[00:09:53.09] 

closer to materialize of anything else.

[00:09:55.09] 

I guess I should say specifically framed around climate. Climate. Yeah, exactly right.

[00:10:02.14] 

I guess I want to compare and contrast this with a, to my mind, somewhat similar agreement that also got a lot of headlines a couple of years ago, which was in 2017, I think it was, New Zealand launched what it described as an experimental humanitarian visa for people facing sea level rise. It was widely interpreted as the world's quote, unquote, first ever climate refugee visa. What happened there? And I get. And is that one of the reasons why, as you know, to this New Australia discussion, agreement with Tuvalu does not frame the visa as a humanitarian refugee visa.

[00:10:41.21] 

It's interesting because I think there have been so many things pitched as the first climate refugee visa. And look, I mean that proposal that New Zealand put forward with a relatively new labor government was I think an attempt to. A genuine attempt to say New Zealand is serious about assisting its Pacific neighbors. New Zealand particularly, I think compared to Australia, sees itself far more, I mean, people in New Zealand really regard themselves far more as within the Pacific family. I think for Australia there isn't such a widespread kind of view like that, which I think also made the Australian Tuvalu arrangement quite an interesting one. But I think, you know, there were certainly domestic political issues at play in New Zealand with a, you know, delicate arrangement within the Parliament, where I think ultimately there wasn't sufficient support for that to go through. But equally, I think when the New Zealand government delved into the idea and explored the idea more fully, particularly in consultation with Pacific communities, it became apparent that in fact most Pacific communities were not calling for a refugee like visa, but that there were other options that they wanted to explore.

[00:12:01.15] 

I should note that for many years now New Zealand has had a particular visa called the Pacific Access category. It also has a similar type of visa for people from Samoa. But the Pacific Access category enables a certain number of people from designated Pacific countries to move on a permanent basis to New Zealand. They have to be between a certain age, they have to have certain English language proficiency and importantly have a job offer in New Zealand. And while that might sound like a barrier, in practice, it has been, it hasn't really been such a barrier. And the scheme operates a bit like a lottery so that people apply to go into the ballot and then X number of names are drawn out and provided the requirements are met, people can move on a permanent basis to New Zealand. So I think the, you know, this humanitarian visa idea was to say, well, some people won't qualify for that, they won't have the skills or the, won't be within the right age bracket to move. So let's broaden it out. And I think that seems to be the difference too in this new Australian Tuvalu visa that it doesn't seem to link movement to having work.

[00:13:13.17] 

It talks about coming to study, to work or to live. So presumably that to live would mean there's not an age limitation necessarily, but we still don't know what the detail might look like. And interestingly too, Australia emulated the Pacific Access category that New Zealand's had for a long time through its Pacific Engagement visa, which is shortly to become operational. So I think too, what's also relevant to note is that in the New Zealand case law, so where people are claiming or arguing that they shouldn't be removed to certain countries on the basis that they have a refugee claim, or that their human rights are at risk, namely their right to life, or that they're at risk of inhuman or degrading treatment if removed, New Zealand has really been leading the way there. So I think, you know, many respects, climate in New Zealand has been quite ripe to sort of look, well, how do we legislate or institutionalize some of this sort of protective framework in a way that the Immigration and Protection Tribunal in New Zealand has already been doing for individuals who've, who've kind of made claims to it in some cases.

[00:14:25.24] 

I want to poke at that in one second, but I want to go back briefly to this notion of a humanitarian visa, some of the Pacific engagement visas. You talk about my understanding, correct me if I'm wrong, there's not an explicit climate component there.

[00:14:38.23] 

Right.

[00:14:39.20] 

It functions more or less like a labor, any sort of employment. Labor visa, I guess. How is that 2017 New Zealand experiment viewed? Now, in retrospect, is it a cautionary tale? Is it a missed opportunity, something else which is another way of asking, were there lessons from that episode that helped inform this recent Australia Tuvalu agreement and. Or other similar to the extent there are any other similar just policies underway?

[00:15:07.24] 

Well, I think the biggest distinction is that as far as we understand it, that it was Tuvalu who approached Australia requesting this framework. And I think that's if any, if there's to be a cautionary tale from the New Zealand proposal. I mean, what the government itself came out to say was we need further consultation because we've realized that while we might have all the goodwill in the world, what we were suggesting was not necessarily going to be embraced by Pacific communities themselves. I mean, I joked before that we've had, you know, the first climate refugee visa ever. I mean, in fact, if you go back into the early 2000s, there was a proposal by the Greens in Australia to create a climate refugee visa in the States. There have been various proposals for similar arrangements. I mean, sometimes the language. I don't like the language of climate refugees exactly, but I guess it's a shorthand for saying there are some people, in fact, there are some people who will qualify as refugees. The Refugee Convention, where the impacts of climate change worsen their predicament. But quite aside from that, you know, how do climate impacts and disasters factor in to what we might call complementary protection claims?

[00:16:23.08] 

So where people's lives are at risk, or as I say, they might face cruel, inhuman, or degrading treatment because of the conditions in their country. And I think we're seeing, we're starting to see decision makers around the world grapple with that, although understandings of how all of this works with existing law are far better developed in some regions than in others.

[00:16:47.04] 

And so this is the point in the conversation where I usually make very explicit that under international refugee law, there is no clear definition or there is no mention of climate or environmental change as a, a reason to provide refugee status, the 1951 Refugee Convention makes no mention of these things, etc. Etc. But as you note, there are complementary kind of overlaps between environmental refugee, environmental and climate vulnerabilities and reasons to provide protection in international law writ large. Let's, let's talk about those, especially in the New Zealand case, which as you say is a bit more out front than some of other countries. I know there was to go back of the headlines, you know, the first ever climate refugee, one of the people who often or who has gotten headlines for the first ever climate refugee, quote, unquote, or at least an important case, also comes from New Zealand. I'm thinking of an individual named Ioane Teitiota from Kiribati who sought asylum on climate grounds, I believe is the story. New Zealand said no, but the UN Human Rights Committee said that maybe he should have some protection or he should be eligible for some protection, I guess.

[00:17:59.18] 

Can you break down what happened to me in that case and if there are other cases that are, are worth discussing?

[00:18:05.11] 

Yes, yeah. So, I mean, this was an interesting matter where Mr. Teitiota had lived in New Zealand for some time. Through various events that happened, it became apparent that he'd overstayed his visa. He'd originally gone there to work. And there were very limited, there really were very limited grounds for him to, to remain. And so I think the, you know, his, his lawyer said, well, this actually could make a very case given the impacts of climate change that Kiribati is already experiencing, but also the projected impacts into the future. You know, let's see whether New Zealand would provide you with protection for, for those reasons. Now, as you say, he, he wasn't successful either on the refugee claim or on the, the kind of complementary human rights grounds. But, but I think what's important to note is that even in the New Zealand, or perhaps especially in the New Zealand Immigration and Protection Tribunal, the decision maker Bruce Burson did say that potentially if the factual matrix were right, then somebody could indeed be a refugee under the Refugee Convention definition, where the impacts of climate change exacerbate or feed into the persecution and country conditions that a person, to which a person fears being returned.

[00:19:29.00] 

So I think that's one important point to note that the Refugee Convention doesn't need to be expanded necessarily in order to accommodate certain protection claims. Certainly not everybody, but there are some people who would already qualify. And UNHCR, the UN refugee agency in 2020 issued legal considerations to explore and explain when and where the Refugee Convention might apply. And indeed with colleagues, we're currently in the process of developing guidelines for decision makers or guidance for decision makers to really show in a very detailed and practical way how refugee law and human rights law based principles of non-refoulement could assist here when it came to the...

[00:20:13.11] 

Sorry to cut you off. Non-refoulement is the notion that you should not send someone back to an environment and where they would be, their grave rights would be at risk. Right. The right to life.

[00:20:22.12] 

That's right. Where they have a well founded fear of being persecuted or face a real risk of being subjected to serious forms of harm. That's right. So thank you. So, so then, I mean the, the more relevant question in the Teitiota matter in New Zealand then and certainly the aspect that went to the UN Human Rights Committee by virtue of the jurisdiction it has, was looking at the right to life. And in New Zealand they also were looking a bit more closely at the inhuman or degrading treatment component of the claim. When it got to the Human Rights Committee it was really a focus on the right to life and the question was whether given the factual situation in Kiribati, the individual circumstances of Mr. Teitiota  and his family, whether it could be said that if he were returned to Kiribati his right to life would be jeopardized. And I think what was interesting is in the New Zealand context it was looked at more in terms of arbitrary deprivation of life. The Human Rights Committee takes a broader approach to the right to life and says we've got to focus on whether a person would be able to live a life with dignity.

[00:21:26.20] 

And I think that, you know, that sort of changes the flavor of what we're looking at somewhat. On the facts, both in the New Zealand tribunal and subsequent courts and then in the UN Human Rights Committee, it was found that, you know, on the facts the claim wasn't made out but as a matter of principle. And this was perhaps, you know, one of the most important statements by the Human Rights Committee. As a matter of principle, people who face serious risks because of climate impacts could well benefit from the principle of non reform. In other words, states would not be allowed to remove them where the right to life or, you know, right to be protected from cruel, inhuman, or degrading treatment were at particular risk. I mean, in one sense this wasn't groundbreaking because scholars had said that for a very long time we have comparable cases about health and medical cases where a similar point has been made. But I think it was very important to now have that statement of authority from the Human Rights Committee because it's certainly now being picked up by advocates and by decision makers in other courts and jurisdictions too.

[00:22:38.15] 

And I guess to be clear though there is a very real difference from sending someone back or not sending someone back to a place where their rights would and life could be in jeopardy and allowing them a pathway out of a place where their rights and liberty are in jeopardy.

[00:22:53.02] 

Well, no, I mean, I think it's interesting because, yeah, as you. This wasn't a case of someone saying, I had to flee because this happened. It was more akin to what in refugee law we call a refugee surplus claim, where somebody's murdered, traveled somewhere else and while they're away a conflict breaks out or a new government comes to power where somebody of their ethnicity is being persecuted, that sort of thing. And then they say, well, actually I can't now go back. So in the refugee context, there are certainly parallels. But, yeah, I mean, I, as a matter of, I don't know, would we call it good policy or just practice too? I mean, I think, yes, you need to have mechanisms to ensure that people aren't sent back to particular forms of harm. But equally, I think we need to have pathways to ensure that people can leave situations before they become so, so dangerous that we see people really taking their lives into their own hands. And that was another point that the Human Rights Committee made, was that, you know, well, before the, the violation occurs or that, you know, extreme risk materializes, protection would need to be forthcoming.

[00:23:59.03] 

So in, in that sense, this is why things like dignified migration pathways are important. And I mean, before you mentioned, you were saying, well, the Australia-Tuvalu deal references climate change in the kind of broader framing, whereas the Pacific access category in New Zealand doesn't. That's true, but I think we need to be cognizant of the fact that stock standard migration pathways for family reunion, education and work are really important mechanisms here as well. We don't necessarily need to create brand new visa categories. It's about looking at, at what do countries have, to what extent can they be flexible in how they apply eligibility requirements from certain regions or how might they expand them? By all means, create new visas if you want to. But enabling people to move on their own terms isn't dependent on having specific visas called climate visas or something similar.

[00:24:55.00] 

And this kind of brings us around to something you mentioned at the beginning of this new regional framework on climate mobility in the Pacific.

[00:25:02.17] 

Right.

[00:25:03.04] 

Can you give me a very brief overview of that and I guess what the future of climate mobility, climate migration in the Pacific looks like?

[00:25:11.12] 

Sure. Look, I should disclose that I, along with a small team were appointed as the technical drafters of the initial drafts of The Pacific Regional Framework on Climate Mobility, the document that has subsequently been endorsed by Pacific leaders, is, you know, is different again, it's obviously drawn on those early drafts, but it then became more. More of a political document and so. And it's, you know, shorter and so. Shorter. Yes, I'm an academic, but in. In essence, it was something that I think Pacific community or Pacific governments felt was really important to try and elevate certain, well, certain elements that would comprise a regional framework on climate mobility. Now, it's not a legal document, it doesn't provide formal pathways, but it essentially draws out the elements a bit like those mentioned in the Nansen Initiative Protection Agenda. So staying in place, displacement, migration, planned relocation and so on that countries in the region need to be thinking about. So it's looking both at internally, in our own countries, what do we need to do, but as a region and in terms of regional and international cooperation, what are the sorts of things that we want to be promoting?

[00:26:24.04] 

And I think the very existence of such a framework is quite powerful because it's saying to the world, we are a region currently and certainly in future experiencing movement linked to disasters and climate change. This is what we want to do about it, and this is where we will be calling on the international community to support us. So this was really the first stage. It was developed in consultation with affected communities, obviously governments, NGOs, experts, international organizations. And then the next iteration is, well, how do we sort of operationalize it? How do we have, you know, what policies are developed beneath it to really give effect to the. The broad commitments that are expressed there?

[00:27:09.14] 

And we're almost out of time, but I guess just kind of briefly to wrap up, are there lessons from this kind of. From this work that's been going on in the Pacific that is relevant for the rest of the world? I mean, is it fair to think of these kind of experiments and legal explorations as. As a preview of some of the global reckoning that we all will be doing as the impacts of climate change continue to become more extreme and certain vulnerable areas are faced with the decision about possibly migration, I guess what sort of lessons can be drawn, I guess for the rest of us?

[00:27:43.06] 

I think there are some important ones that, you know, firstly, it is important to look at what is a particular region or sub region experiencing, because the needs and concerns are quite different in some parts of the world, the mobility context is different. In Africa, for example, there are free movement arrangements that we don't have parallels of in the Pacific. You know, likewise in Europe, for example, but I think so. It's looking appreciating the regional context. It's also recognizing that patterns of migration and movement are likely to be replicated here as well. We're not likely to see sudden shifts in how people move, but at the same time we can't stick our heads in the sand and just hope for the best. I mean, this is something that we need to be planning for now and ensuring that people have safe and dignified ways to remain in in their homes, which is mostly what people want to do, but to move elsewhere if they want to and if they need to. So I think, you know, certainly the Pacific isn't the only region of the world that's grappling with these issues. There have been innovative approaches adopted in other regions as well.

[00:28:55.02] 

But I think that it's important to recognize the participatory approach in the Pacific, the needs and desires of affected communities, and really listening to their voices in what it is that they want and don't want. When it comes to responses to climate mobility.

[00:29:13.20] 

We should probably wrap it up there. This was super fascinating. I'm so glad we could have you on Jane, thank you so much for your time. I really appreciate this.

[00:29:21.00] 

My pleasure. Thanks for having me.

[00:29:24.11] 

Jane McAdam is a Scientia Professor of Law and Director of the Kaldor Centre for International Refugee Law at UNSW in Sydney. She is a Australia Research Council Laureate Fellow and a Fellow of the Academy of the Social Sciences in Australia, the Australian Academy of Law, Oxford University's Refugee Studies Center, and the Refugee Law Initiative in London. In 2021, she was appointed an Officer of the Order of Australia for, quote, distinguished service to international refugee law, particularly to climate change and the displacement of people. Thanks for listening to this episode of Changing Climate, Changing Migration. Make sure to subscribe to the podcast to catch all our new episodes. You can find us on Apple Podcasts, Spotify, YouTube, and wherever else you get your podcasts. If you enjoyed my discussion with Jane McAdam, I'm sure you'll enjoy some of our other episodes exploring whether climate migrants should get special legal pathways, why there is no such thing as a climate refugee, and the global governance of climate migration. Find all our episodes in our archives at migrationpolicy.org/podcasts. The Migration Information Source has a special collection of articles about climate change and migration, which you can find online at migrationpolicy.org/climate. And to stay on top of what we've been publishing, subscribe to the Migration Information Source newsletter.

[00:30:54.23] 

It's free, comes out twice per month, and is available at migrationinformation.org. If you've got thoughts on this episode or ideas for the future, send me an email at [email protected]. I'd love to hear from you. This episode was produced by Yoseph Hamid and Daniella Espacio, with assistance from Lisa Dixon and Michelle Mittelstadt. Our music is Touch by Patrick Patrikios. My name is Julian Hattem. I'll see you next time.