When Waters Rise and Deserts Crawl
By Spencer Aitken
Image: "Little Sahara" by BLMUtah is marked with CC PDM 1.0
Among the many executive orders made in President Biden’s time in office thus far is Executive Order 14013. Aimed at rebuilding and expanding refugee policy and resettlement in the first post-Trump year, section 6 specifically requests a report on climate change and the ways that it affects migration. This inclusion highlights an important aspect of environmental activism and environmental justice: where will people go as climate change worsens? More importantly, it is a step towards potentially outlining what a country like the United States does to help migrants of climate change.
In this conversation, people who must flee climate change and the disasters associated with, or strengthened by, climate change are referred to as “climate migrants,” and not the potentially stronger word choice of “climate refugee.” This linguistic distinction is important. The choice of wording here is not meant to pass judgment on the experiences and suffering of those who must flee their homes due to climate change: it is a legal distinction with drastic consequences. Frankly put, an individual who flees their home due to climate pressures alone is not a refugee in the legal sense. “Refugee” is narrowly defined by the 1951 Convention Relating to the Status of Refugees and its subsequent protocol, requiring persecution based on a nexus ground of religion, nationality, race, political opinion, or a particular social group. Thus, while an individual who must flee an ethnic war caused by a climate-related pressure, like drought or desertification, may qualify, a person who leaves because of gradually rising waters would not.
This distinction is tied to protections and rights afforded to the migrants who qualify as refugees. The 1951 Convention instructs State Parties in what rights should be afforded to refugees within their borders. These rights include guarantees of social, economic, and political rights at levels no less than those afforded to foreign nationals in similarly situated conditions, with some rights such as religion being guaranteed at levels similar those afforded to nationals of the receiving state. The 1951 Convention also prohibits refoulement, or the forced return of a refugee to territories where their life or freedom would be threatened on account of any of the five nexus grounds (religion, nationality, race, political opinion, and social group). The definition of a refugee can also play a role in how national governments address immigration. For example, the United States, in Section 101(a)(42) of the Immigration and Nationality Act, defines “refugee” using the same five nexus grounds as the 1951 Convention. One of these nexus grounds is required to be eligible for asylum in the United States. These legal protections tied to refugee status are often not available to climate migrants unless their flight also involves one of the nexus grounds. This means a migrant moving due to solely environmental pressures does not have the same level of obligatory protections afforded to refugees under international law and is foreclosed from seeking asylum as a path for immigration in the United States.
The report brought before President Biden pursuant to Executive Order 14013 will hopefully provide some semblance of guidance on the protections needed by those forced to leave their homes due to climate change and how to open US immigration to climate migrants.
The requested report will also hopefully address migration that does not cross international borders. An important part of the refugee definition includes that individuals must also be outside of their home country, and unable or unwilling to gain the protection of their home country due to fear of persecution, to gain the protection of refugee status. If people are displaced, but remain within their home state, those people are considered “internally displaced persons,” or IDPs. IDPs are generally under the purview of their home state, having never crossed into a secondary or tertiary state in their migration, and should be given the protections afforded to them under international human rights law and through customary law. Furthermore, the Guiding Principles on Internal Displacement, a non-binding set of guidelines, clarifies the grey areas in these protections, making recommendations to governments on how to treat displaced people and noting the recommended rights that a displaced person should retain.
Internal displacement is crucial to the conversation about climate migration because currently the majority of climate migration is still internal. Also important is the fact that climate migration can often be in response to slow, drawn-out changes in an environment, as with the ways herders have had to adapt in Mongolia. In addition, displacements do not necessarily need be permanent as seen through those residents who returned to New Orleans after Hurricane Katrina in 2005. These examples highlight the unique challenges of internal displacement: internal policies adapting to both incremental and catastrophic climate conditions on varied timelines of displacement. Any conversation about climate migration must include plans for internal support across a variety of potential situations and must account for internal problems. The United States exemplifies the trend of how climate change does, and likely will continue to, disproportionately affect communities of color and poor communities. For example, these communities may be at greater risk of flooding and may not have as strong a capacity to rebuild. With internal policies being crucial to mitigating and aiding internal displacement, the conversation must include how to facilitate migration with existing social inequities in mind.
Climate migration is not a future problem; the problem is in the here and now. Estimates of current displacement due to weather and climate-related disasters and hazards average between 22.5 million and 24 million individuals newly displaced each year. These disasters range from the flooding in Bangladesh, which has displaced nearly 700,000 individuals in the last decade, to the the desertification of Lake Chad, to the displacement and migrations in Central America following Hurricanes Eta and Iota. In the United States, internal migration is already at play. There are seasonal evacuations in coastal areas such as those along the Gulf Coast affected by Hurricane Laura. Small communities in places like Alaska and Louisiana are planning permanent moves due to erosion and land loss. This is not a problem for tomorrow, but an actively developing situation today.
Climate migration exists in the crossroads of environmental law, international law, and immigration, and all three fields are crucial. In the effort to mitigate climate migration preventative measures are crucial. No one know how many climate migrants could, or will, exist with unmitigated – or under-mitigated – climate change. Nevertheless, addressing climate change itself lessens the effects of climate change on populations. This link cannot be forgotten in the discussion. Climate migration shows the human price of climate change and reiterates just what is at stake. It is a reminder that environmental justice must retain its human element. While the contents of any report provided to President Biden, and any changes made by the Biden Administration because of it, are yet to be seen, the report is a step in the right direction. It begins in earnest the conversation about how the United States responds to climate migration, hopefully answering where and how people should go when waters rise and deserts crawl.