In from the Cold? Should Climate Migrants Get Special Legal Migration Pathways?

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CHAPTERS 

[00:02:06]: Why international law does not recognize a category of “climate refugees” 

[00:03:51]: What existing data can—and cannot—tell us about cross-border climate displacement 

[00:06:09]: Climate displacement and questions of responsibility and global equity 

[00:08:41]: Why expanding the 1951 Refugee Convention raises legal and political risks 

[00:10:47]: How climate, conflict, and economic pressures intersect in migration decisions 

[00:15:50]: Argentina’s environmental visa and the role of regional policy approaches 

[00:20:32]: How existing tools (TPS, Cartagena Declaration) form a fragmented protection system

TRANSCRIPT
[00:00:02.12] 

Welcome back. This is Changing Climate, Changing Migration coming to you from the Migration Policy Institute. We're speaking with experts about how climate change is upending migration. My name is Julian Hattem. I'm the host of this podcast and the editor of MPI's Migration Information Source. That's our online magazine and newsletter devoted to robust, accessible analysis of international migration. This podcast is part of a focus by the Source on climate change, which includes a special collection of articles that you can find online at migrationpolicy.org/climate. My conversation Today is about legal avenues for people displaced by the impacts of climate change and whether we should consider creating new, special pathways. I'm not a lawyer, but I find this question a really fascinating one. On the one hand, it's about legal capacity and challenges that governments already face accommodating migrants, particularly forced migrants. But it's also a question of values. If people are being displaced by climate change, do we have a collective responsibility to protect them? And if so, who in particular has that responsibility? My guest today is Ama Francis. Ama is the Climate Displacement Project strategist at the International Refugee Assistance Project and a non resident fellow at the Sabin center for Climate Change Law at Columbia Law School.

[00:01:27.02] 

Ama, thank you so much for coming on the podcast.

[00:01:29.10] 

Thank you. Thank you, Julian, for having me.

[00:01:32.03] 

So, a thing we have discussed repeatedly in this podcast before is that legally speaking, there is no such thing as a quote, unquote climate refugee or a climate migrant. People moving internationally to protect themselves from the impacts of climate change are not guaranteed humanitarian protection. Should they be? I mean, should we be creating a new climate refugee or some other legal category to protect people?

[00:01:59.07] 

Yeah, I think the answer for me is both yes and no. So taking a step back, you're right, there is no legal category of protection for climate displaced people in particular. So there's no climate category in our international refugee law, for example, and there is not yet any law in the world that's implemented that's aimed specifically at addressing climate climate displacement. And for me, given the scale of climate migration that's already happening and is projected to happen, that's a problem because our law is just behind that said, people moving in the context of a changing climate are doing so because of a concert of reasons. So people might be moving because of a climate related disaster and also poor governance, or they might be moving because of a climate related disaster they experienced and ethnic persecution. And so for me, it's also important to understand that climate change is changing the face of 21st century migration and people are moving for a number of reasons. The legal solutions that we develop really need to respond to the multi causality of the movement that we're seeing. So to answer your question, do we need more legal protection for climate displaced people?

[00:03:18.17] 

Yes. Does it need to be just targeted towards climate displaced people? I think no.

[00:03:24.20] 

I want to drill down into several of the things you mentioned, but let's do it first. I want to take a, take, take a step back.

[00:03:30.14] 

Right. Okay.

[00:03:31.07] 

So most people, as you mentioned, displaced by climate change now and projected to do so in the future are displaced internally within their own country. Usually it's temporary for a couple of days or weeks. They go back, I guess. Why is there a need for a legal system to make it easier for them to move internationally when it seems like that's not what most people are doing? Most people are not moving across borders.

[00:03:54.13] 

Yeah, I'm glad that you said it seems like most people are not moving because I think that ambiguity is really important to pause on. So we know that many people are moving within their own countries. We have data from internal displacement monitoring centric that shows that for the past decade or so more people have been displaced within their own countries by environmental disasters than conflict. But we don't really have reliable data or much reliable data, or rather we have quite a range of data about what cross border displacement looks like. And for me, as just like a rational thinker, if we don't know what international migration looks like, then I don't see how we can really say conclusively that we know that most of this climate displacement is internal. So we don't have conclusive data for what cross border migration looks like. We do have conclusive data for what internal displacement looks like. But to me, without being able to clearly make a comparison, we can't really conclusively say that most displacement is happening internally, even though we know that a lot of it is. A lot of experts will push back on this because it is a common line in the field that most climate displacement is internal.

[00:05:15.00] 

But for me, I don't feel so comfortable with that because we just don't have conclusive cross border data. That being said, the reason even we do know that people are moving within their own countries. And that is the case for a number of reasons. International migration requires a lot of resources and not everyone has a lot of resources and can make that journey. And also it's very hard if you're trying to migrate from a Global South country, for example, to a Global North country. It's quite difficult. Generally speaking. Global Northern migration policies are quite restrictive. So I point that out because there are some structural realities that shape what's possible for people in their journeys. Yeah. And at IRAP, and for me, really, climate change is an issue that is really, really centered on justice. Something that I say is that climate change exposes the fault lines of justice. And that's true for climate displacement as well. And given the fact that many people are migrating from countries and communities that have contributed very little to the climate crisis, I think it's a matter of justice that countries provide safety to those people. And for the truth is that for some people, accessing safety in another country is the best option.

[00:06:40.18] 

That's not always the case, but in some cases it is. Yeah.

[00:06:43.24] 

I mean, I kept thinking as you were talking. I mean, there's a bit of a paradox here, right. In that like people, from what we seem to know, from what experts in the field seem to suggest, people tend not overwhelmingly to be displaced internationally by the impacts of climate change, but also one of the reasons is because they can't, because there are legal barriers preventing them.

[00:07:02.18] 

Exactly, right, Exactly.

[00:07:04.12] 

I guess there's a bit of a catch-22 there, right? Is that.

[00:07:07.02] 

Yeah, exactly. Yeah. That's a really good summary. And there's also some. It also depends. I recently heard from one expert that the eye of a hurricane can be larger than an entire island state, for example. So when we're talking about international displacement, it also, geography matters. So for islands, cross border displacement might be more common than for larger land masses, countries with larger land masses as well.

[00:07:33.21] 

If you're in the United States or China or a big geographically country, it's easier to move from one side to the other versus if you're in a tiny Pacific island nation or something like that, I guess, where there's no place to go, really.

[00:07:45.01] 

Right, right, right, right.

[00:07:47.08] 

But there is, there is some concern though, right, that granting new humanitarian protections, granting new humanitarian legal pathways would degrade the core framework of a humanitarian protection system that has proven itself to be under strain, to put it mildly in recent years. I mean, you know, things like the Refugee Convention have been criticized for their fitness for the current moment. And I guess, is there a concern, Are you not concerned that if we expand the definition of what a refugee is, if we expand the definition of who needs protection to include people displaced directly or indirectly by the impacts of climate change that were further eroding that system, perhaps making it easier for many global northern countries and others to turn their backs on people and further abandon the last few shreds, I guess, of collective responsibility that we have shown so far.

[00:08:41.04] 

Well, I don't think we should expand the definition of refugee under the 1951 Convention under International Law. I don't think that we should have a new category for climate displaced people precisely because of the reasons you mentioned. Reopening negotiation of a refugee definition at an international scale, I think could result in rollbacks of protections for people. That being said, I do think that there are climate displaced people who are eligible for refugee protection who are being left behind. So the UN refugee agency, for example, a couple of years ago released this legal considerations paper that made very clear that there are some cases in which a climate displaced person would be eligible for refugee protection. And that's because, as I mentioned earlier, people moving in the context of a changing climate are doing so for intersecting reasons. Climate change tends to impact the most marginalized folks, and often people who are marginalized are experiencing lots of different elements of structural inequality and persecution. So it might be that there are people and there are people that would meet the refugee definition because they're experiencing climate impacts and some sort of other persecution that international law recognizes, like ethnic persecution, for example, or political persecution.

[00:10:05.14] 

Wouldn't they already be covered then? I mean, why, why do you need to make something new if they already would fall under these other buckets?

[00:10:11.14] 

Yeah, you don't need to make something new, but you do need to use the law in a new way, let's say because I think a lot of adjudicators have this gut reaction where a lot of people in general have this gut reaction where it's like climate refugees. That's not a thing. This does not apply. It's not relevant. And so there are people that are being left behind because of that instinctual sort of or trained reaction. We need to be retraining adjudicators to be asking more probing questions to really understand when there are these intersecting elements of a claim.

[00:10:46.02] 

Okay, so, but I also kind of want to drill down on that a little bit more. And how do you, how do you disentangle that web? Right? I mean, as you know, people move for a variety of reasons, all happening at the same time. If you're the hypothetical farmer who's, you know, impacted by a drought and climate change, their crop is not doing well for some reason, they move. Maybe that's a climate related movement, maybe that's an economic challenge, maybe they're just not a very good farmer. Maybe that's a political challenge and that they belong to a minority ethnic group that for some reason is being disadvantaged by the government, I guess. How do you disentangle that and especially how do you kind of draw out the thread of climate and kind of separate that to the extent that you need to, or maybe you don't need to from the other factors that are going on?

[00:11:32.13] 

Yeah, that's a good question. And I think maybe an example would be helpful. So say you're a person who's dependent on agricultural livelihood living in Madagascar and your community has been experiencing drought, true story, has been experiencing drought. And you're part of an ethnic minority and the government receives international aid to help support the famine or help address the famine. And because you're an ethnic minority, you didn't receive any of the of that aid. The government gave it away to friends. That person in theory could be eligible for refugee protection because they experienced ethnic persecution, happened in this context of disaster relief or response to this disaster of drought. But the truth is that if that person showed up to an adjudicator, said, hey, you know, I'm applying for refugee protection. Said I, the reason I left my country was because of drought. I think the knee jerk reaction is, okay, well, you're not eligible for refugee protection. So I think the devil is really in the details. But it's important to be training adjudicators, whether that's asylum officers in the U.S. or resettlement officers elsewhere, to be asking these probing, detailed questions to really tease apart the elements of the case.

[00:12:55.22] 

That's their job, and that's what we do as lawyers, is prepare clients to talk about that. Does that answer your question?

[00:13:02.13] 

Yeah, yeah, I guess. And so to be clear, you are not advocating for a new legal pathway, are you or are you?

[00:13:09.18] 

I'm not advocating for a new legal pathway under refugee law. I am advocating for a new legal pathway outside of the refugee protection framework.

[00:13:19.18] 

So what would that look like?

[00:13:20.23] 

Yeah, yeah. So for example, here in the US we could establish a climate humanitarian visa. There have been humanitarian examples of this in other parts of the world, which I'm happy to talk about a little later. But the way that I imagine this looking is that we would have a new visa category that was for people from climate vulnerable areas. So one of the things that you've pointed out, Julian, is that it can be hard to tease apart the climate, climate element from other elements of someone's experience. Right. So then how do you create a legal protection category that's catered towards climate displaced people is a real challenge. And one way to address that, or I would propose addressing that is having a system in this visa of two step eligibility. So you would say one, are you from a climate vulnerable region in your country? So you could have a US agency, for example, responsible for determining, based on scientific data, which areas of countries are particularly prone to climate impacts. And if you're a person coming from one of those regions, sub regions in a country or from a country, you would be just prima facie eligible for this visa.

[00:14:36.12] 

But then you'd have to meet this other layer of eligibility which would be based on, could be based on vulnerability. So I think it's important that any sort of relief that we're developing for climate displaced people includes the most marginalized folks. With this climate visa, you could design it so that people who might have difficulty accessing other forms of immigration relief, labor visas, student visas, could actually migrate and access safety in the U.S. yeah, of course something like that requires congressional action, which is a whole other kettle of fish. But yeah, in the ideal world there are definitely ways to support climate displaced people.

[00:15:23.04] 

You hint there at the challenges in the US context, which has not, depending on how you calculate, like approve new immigration laws in Congress in what, 20, 30 years, which is one barrier. But you, you said there are other kind of examples you can point to internationally that might poke at what this could look like and. Yeah, yeah, what, what does the universe look like broader? Are there comparative examples that might be inspiration to the US or elsewhere in the world?

[00:15:48.15] 

Yeah, I love that question. So Argentina this spring just announced the creation of a new humanitarian visa. It's environmental, so it includes both climate related and non climate related disasters. So disasters that are exacerbated by climate change, like hurricanes, but also things like earthquakes, which are not climate related events, but people are still displaced by. And that visa I think does a couple of important things. One, it provides access. It hasn't been implemented, so we'll see how this goes, but it provides legally, it provides access to permanent residents, which is so important. A lot of the legal measures that are being used to protect climate displaced people are ad hoc and temporary. We haven't quite talked about this, but there are, there is a patchwork of laws around the world that governments are using to protect people, but it's not a systematic framework. And one of the really important things about this Argentinian visa is that it does provide people access to permanent residence, which is important. If you're from a place where climate has completely devastated your community and you don't have the ability to go back to home community, then having the ability to have more permanent legal status and more durable solution in a new home is really important.

[00:17:10.10] 

The other thing I'll highlight about the Argentinian visa is that it's responsive to people coming from countries within the region. So nationals from Mexico, Central America and the Caribbean are eligible. This is something we're sort of seeing that in some senses solutions at the regional level are a little more accessible than at the international scale. Sort of this idea that we're seeing sort of friendly neighbors within regions, which I think is really important, that is interesting.

[00:17:42.10] 

And the idea of a broader universe of not one kind of global regime as with the Refugee Convention or other kind of international legal standards, but kind of pockets and bubbles around the world of different modes of protection. What in this case do you think prompted Argentina to act? I mean, what are the kind of instigating events or political changes or what happens, I guess, for a government, for a country to make this kind of. Yes, what some people would call like a somewhat radical, potentially somewhat radical immigration change. To the extent that you can speak about that.

[00:18:16.16] 

Yeah. I mean, I don't, I can't speak to the motivation of the Argentinian government, but I will say that generally I think governments are seeing that climate displacement is happening now and that there is a need to address it. And I think that this, this idea that planning for migration makes for better outcomes, both for migrants and for receiving countries and communities has been really persuasive to places. So I think that's perhaps played a role as well. But even in the U.S. which, you know, some wouldn't applaud the track record on immigration here, even in the US there's been a lot of excitement about addressing climate displacement. So the Biden administration, one of the first things the administration did was release a refugee executive order that included climate displacement and required the government to report on climate change's impact on migration. And that was the first time the US had done any sort of comprehensive reporting on climate change and migration. And so I do think there is some appetite to address the challenge and protect people moving in the context of a changing climate. We still have lots more to do, but yeah, there have been some good starts.

[00:19:40.07] 

And you talk about this, you mentioned this patchwork of systems that are being used to protect people that are not necessarily created with the idea of climate displaced people in mind. And in the US for instance, I'm thinking of things like temporary protective status, which protects from deportation people already in the country at the time when a major event, including potentially a climate or natural disaster occurs in their origins country. I guess what can you describe that current patchwork as it exists for me either in the US or kind of more generally? I guess. What? In the absence of a formalized, robust humanitarian protection regime for climate displaced people, what, if anything, have we been using to protect people?

[00:20:24.17] 

Yeah, that's a great question. So TPS Temporary Protected Status is definitely part of that. And when I was talking about a patchwork, I'm referring to laws across the at least the U.S., Mexico, Central America and the Caribbean that countries have been using to respond to people moving because of environmental disasters. Temporary protected status is one. But a lot of countries in the Americas have also been using humanitarian visas, some of which expressly mention that environmental disasters can be one humanitarian consideration. Some of them don't, but are still used. Or things like the refugee definition under the Cartagena Declaration, for example, which has a relatively generous definition of a refugee, which includes this phrase of seriously disturb the public orders. The clause is sort of people fleeing a situation where there's an immense public disorder can also be eligible for refugee protection. And this definition was applied when people were fleeing across in various countries across the Americas when people were fleeing the 2010 Haitian earthquake. Again, earthquakes are not a climate disaster, but an environmental disaster more broadly. So across the Americas, there have been these various legal mechanisms that have been used to protect climate displaced people, which I think is important to emphasize because it's not that we're starting from absolute scratch with the law.

[00:21:58.16] 

There are things that exist that countries have been using, but there are some important gaps that this sort of patchwork approach creates. One, a lot of the legal mechanisms are ad hoc and discretionary. So there's not sort of any robust or reliable sense that you will be able to access protection. And a lot of them also provide temporary relief. So don't allow you to permanently relocate in another country. Which means if you're fleeing a slow onset disaster, that leaves you sort of, sort of in this legal limbo where you can't return home to a climate impacted community, but you can't fully access legal rights in a new community either. Yeah. So it's important to build on this patchwork framework with a new legal mechanism like a climate humanitarian visa. But it's also hopeful to me that countries are starting to use law that does exist to address this issue.

[00:22:56.05] 

We should probably wrap things up there, but I really enjoyed this conversation. Ama, thank you so much for coming on. I really appreciate it.

[00:23:03.01] 

Thank you, Julian, for having me.

[00:23:06.04] 

Ama Francis is the International Refugee Assistant Project's Climate Displacement Project strategist, a little bit of a mouthful and a non resident fellow at Columbia Law School's Sabin Center for Climate Change Law. I hope you enjoyed my conversations with Ama. If you did, you should subscribe to Changing Climate, Changing Migration. You should also check out all of the other episodes of the podcast. This is this is actually our 20th episode, which means there are 19 other episodes you can listen to if you haven't yet. You can find all of those in our archives online at migrationpolicy.org/podcasts. And while you're there, sign up for the Migration information source, which this year is celebrating its 20th anniversary. Stay informed about what MPI is up to by following us on Twitter, LinkedIn, Facebook and Instagram. Send me an email at [email protected]. This episode was produced by Yousuf Hamid with assistance from Lisa Dixon and oversight by Michelle Mittelstadt. Our theme music is Touch by Patrick Patrikios. I'm Julian Hattem. Thank you again for tuning in.