Why We Won’t Reach a ‘Climate Migrant’ Protection Category—And What We Can Do Instead

Climate change will make many areas less easily habitable. Periodically, a call is made to give people moving out of those areas a particular set of rights: to establish a new protection category, a 21^st-century ‘climate migrant’ status to match the asylum rights formalised in 1951. This call was recently reiterated in a new report published by the UN’s Special Rapporteur for the Promotion and Protection of Human Rights in the Context of Climate Change. This blog outlines the reasons why this is unlikely to be possible or desirable, and sets out some alternative options.

Who are the ‘climate migrants’?

It is frequently argued that when it comes to international migration–beyond the region, about which more below—current governance arrangements are ill-suited to the new pressures caused by climate change. This is suggested to result in normative gaps preventing those moving in climate-affected circumstances from acquiring a defined protected legal status.

The resulting proposal that ‘climate migrants’ should be afforded particular rights is an important suggestion, but invites a number of considerations. The first question must concern the demographic that would benefit from any new protected status. Who are the climate migrants, and how can we tell them apart from any other migrant? This is a very difficult issue. Migration is multi-causal, and anyone moving will do so for a host of reasons. Local environmental changes may be low on their list of motivations for moving (see below). Perceived opportunities elsewhere, networks, access to resources, and cultural ties to place and community are all significantly more important factors in shaping decisions—and all of these are affected by climate change, but also by other interactions. Where local environmental changes are a key factor, they may themselves be the result of climate change, or they may instead be primarily caused by political neglect, conflict, or unforeseen consequences of poor policies (as studies of Madagascar and Syria, for example, indicate). Even migrants themselves typically cannot know whether they are moving because of climate change.

Interview results: ‘For what reason did you leave (place of origin)?’

Source: Ficcarelli et al., 2022

Operationally, a second question is required even if we accept that someone can be a ‘climate migrant’: when do they become one? Any government seeking to provide particular protections to a ‘climate migrant’ demographic must be able to establish criteria for assessing claims, and be able to distinguish those who do fulfil them from those who do not. This requires establishing an ‘acceptability threshold’. Did the area in which the migrant lived become ‘sufficiently uninhabitable’ to justify international movement? This is, again, typically a very difficult question to answer. Defining the ‘uninhabitability’ threshold, or the point at which it becomes ‘justifiable’ to move away with the expectation of protection, is very hard. Except in some cases— –such as those of atolls submerged by rising sea levels—it will be highly subjective. When does life in a given locale become unacceptable? Even in the same communities, some will consider conditions unbearable while others prefer to stay.

An ‘acceptability threshold’ needs both parameters and a timeline. The imminence of the hazards expected to breach the accepted parameters is crucial. In the famous Teitiota case, the UN Human Rights Council found that protection was not warranted because Teitiota “did not establish that he faced a risk of an imminent, or likely, risk of deprivation of life upon return to Kiribati”. Any protection category for ‘climate migrants’ would need to decide firstly what the parameters for justifiable movement are—how large the magnitude of the hazard must be, versus levels of adaptive capacity—and secondly when the hazard must be probable for protection to be justified. Would someone only have protection if they were moving in circumstances of immediate threat to life, or would movement in anticipation of loss of livelihood in the next decade be acceptable hazards and timeframes?

For those who do move internationally, there are further questions. Was an internal flight option also available? If so, migrant-receiving states may be justified in denying protection. The UNHCR, in its catchily-titled ‘Legal Considerations Regarding Claims for International Protection Made in the context of the Adverse Effects of Climate Change and Disasters’, notes that an internal flight alternative may often provide another option to international protection. Numerous asylum claims referencing climate hazards have already been rejected on these grounds in EU states. (The UNHCR also notes, however, that where the government in the state of origin is unwilling to provide adequate protection to populations, or where slow-onset effects of climate change spread across the entire country, internal relocation alternatives to international movement may be “neither relevant nor reasonable.”)

It is better to begin from a simple premise: As a clear, operable category in both national and international laws, 'climate migrants' can neither be defined nor define themselves. Instead of working to create a legal migration status defined by climatic events, those rightly working toward the protection of persons affected by climate change should focus on helping vulnerable populations to access other pathways for mobility. This will require a protection approach fundamentally different from the current one, with far greater use of climate-conscious complementary pathways.

The current system of humanitarian migration arose in 1951 with the creation of a way for migrants to circumvent visa restrictions if they could prove on an individual basis that they satisfied objective criteria for facing violent persecution. Those objective and tightly circumscribed criteria form the basis for the political feasibility of this grand exception to visa limits, in a world where high-income electorates generally reject open-ended permission for migration from lower-income countries. Introducing a ‘climate migrant’ addition to this system would require individuals to objectively prove that they are climate migrants, but this generally cannot be done. A vulnerability-oriented approach can be supported, instead, through other instruments.

Threading the needle: the current institutional landscape

What protections do these vulnerable persons currently have, and what are the prospects for expansion? A raft of existing instruments provide different populations with more or fewer options, but many fall through the cracks.

The instrument most frequently referred to is the 1951 Convention on Refugees. This protects those who meet all of the following criteria: they must

1. Be outside their country of origin or habitual residence;
2. Hold a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”, as a result of which they must
3. Be unable to avail themselves of the protection of their country of nationality.

Disasters, by contrast, are not actors, and cannot in themselves discriminate between populations. Those moving in climate-affected circumstances are thus ineligible for protection. The new report by the Special Rapporteur proposes creating an optional protocol under the 1951 Convention to “define and give legal protection to persons displaced across international borders due to climate change”.

The two key needs of this proposal each face a major challenge. As discussed above, defining “persons displaced… due to climate change” is impossible in the case of almost all individuals. Secondly, moving from conception to negotiation, an effort to “give legal protection” to these persons would face opposition from both states resistant to an expansion of obligations, and from international organisations wary of seeing protections rolled back in new discussions.

Other instruments providing or encouraging protections do exist. The 2018 Global Compacts on Migration and Refugees recognise the role of climate change in affecting migration patterns, but provide only non-binding objectives which have furthermore seen only limited implementation. Regional frameworks offer more hope. Prominent among these are the 1969 OAU Convention on Refugees and the 1984 Cartagena Declaration. The 1969 OAU Convention is rare in two respects: it is a binding instrument, and it uses a broader definition of refugees. The Convention provides protection to those fleeing “events seriously disturbing public order”, which may include those moving in the context of climate hazards. The 1984 Cartagena Declaration is non-binding, but similarly recommends that protection is given to those fleeing “circumstances which have seriously disturbed public order”. The definition of ‘public order’ is, however, not yet formalised, making it hard to predict when populations may be covered.

Regional free movement agreements offer still more hope. These do not require an assessment of migrating individuals’ reasons for movement, allowing access to a wider range of adaptive mobility options in response to, or in anticipation of, climate hazards. The development in East Africa of the Intergovernmental Authority on Development (IGAD)’s new free movement regime offers a particularly good example. IGAD’s protocol explicitly provides the right to cross borders in anticipation of, during, or after, a disaster, and to work and have residence in the country of destination. The challenge for IGAD now is to implement this new agreement.

Pushing the envelope unilaterally

Numerous efforts to expand protections for those moving in the context of climate change have been attempted at one time or another.

New Zealand in 2017 announced a new ‘climate’ visa aiming to bring around 100 people a year to the country from neighbouring Pacific Island States. This was widely praised at the time, but was discontinued only six months later due to opposition from the intended beneficiaries: Pacific Island nations did not welcome the label of ‘refugee’, nor the suggestion that in situ adaptation was impossible.

Australia considered a similar visa in 2007, but the bill did not proceed to a vote after criticism regarding the difficulty of defining the eligible populations and the possibility of taking on responsibility for a number beyond Australia’s capacities.

A similar story can be found in Brazil, where the 2017 Migration Law allows those displaced by natural disasters to access humanitarian reception through temporary visas. The law has not yet taken effect: a definition of ‘environmental disaster’ is still lacking, as are criteria for admission and stay and considerations of the visa’s temporary nature.

Argentina has seen more success: a new humanitarian visa was created in 2022, which has already entered into force. This visa provides humanitarian access for citizens of 23 Latin American and Caribbean nations, allowing those moving following a natural disaster to access a pathway to permanent residency. The visa only considers sudden-onset disasters, however: those moving due to gradual salination of groundwater sources, for example, would not be eligible. The visa route has not yet been used.

Intriguingly, the United States, which does not currently provide protection to those moving in contexts of climate hazards, for several decades did provide de jure protection to “persons uprooted by catastrophic natural calamity”. This was active from 1952 until 1980, when the United States harmonised its refugee qualification laws with the 1951 Convention. During the 28 years in which this protection category was available, it was never used. The provision was removed in 1980 with no dissent. The Aliens Acts of Sweden and Finland, in similar examples, both provided explicit protection to those moving in the context of environmental disaster from 2004 2005 onwards, respectively. This protection was suspended following the 2015/16 migrant influx, but even while active, not a single person received protection.

Ultimately, the difficulty of defining a ‘climate migrant’ population makes significant expansions of humanitarian pathways unlikely, and their implementation challenging even if adopted.

Options in the absence of a new protection category

If a new global protection category is unlikely, and definitional obstacles make humanitarian pathways challenging, alternative solutions must be found. Good solutions have already been trialled in some areas, but need scaling elsewhere.

Principally, labour migration pathways targeted towards populations vulnerable to climate change can have major positive impacts. This has already been proven to be the case, as a subsequent blog will outline, and could be transformative if deliberately scaled. But determining which populations both meet the labour needs of migrant-receiving countries and would most benefit from access to international migration is challenging. Comparing vulnerability levels is hard, both across communities and across countries. A unified approach to vulnerability mapping is urgently needed.

Secondly, regional free movement agreements can allow increased access to mobility for vulnerable populations. These should be supported, and ‘border externalisation’ programmes should be reconsidered with attention paid to their impact on free movement regimes.

Thirdly, visa expedition provisions, such as those used in Canada, could be considered for wider use. Canada’s provisions are ad-hoc, but when applied allow faster processing for citizens moving from an area identified as experiencing a natural hazard. This can allow populations faster access to either movement to a location of safety, or to increased resources with which to adapt and rebuild.

Climate-affected migration will be a reality in coming decades. But climate-heightened vulnerability will be far larger. Worrying about trying to distinguish between ‘climate migrants’ and other groups is unlikely to lead to successful policies, and obscures the frankly outsized impact migration can have on development outcomes and—as a corollary—climate adaptation. Instead, we should try to optimise the tools that we do have, making migration more accessible for the most vulnerable.