REIMAGINING THE CLIMATE MIGRATION PARADIGM: BRIDGING CONCEPTUAL BARRIERS TO CLIMATE MIGRATION RESPONSES.

• Author: Pan, Eliza

1. INTRODUCTION 1107 II. SETTING THE STAGE: COMPARING REGULATORY TREATMENT OF WORST- AND BEST-CASE SCENARIOS 1114 A. Managing Catastrophes 1114 1. The Genesis of Modern Catastrophic Risk Management 1114 2. Policy Approaches for Managing Catastrophic Risk 1116 B. Catastrophe and Its Opposite 1122 1 Setting the Stage 1122 2. Examples of "Wonderful"Possibilities 1126 a. Some Past Policies with Wonderful Impacts 1127 b. Some Future Policies with Potential for Wonderful Impacts 1132 i. Colonizing Other Planets 1135 C. Wonder Neglect 1139 Example 1: Worst-Case Scenarios and The National Environmental Policy Act 1141 Example 2: The Social Cost of Carbon and Regulatory Impact Analyses 1143 Example 3: The Anti-Catastrophe Precautionary Principle 1145 III. COMPARING CATASTROPHES AND WONDERS 1146 A. Important Similarities in Catastrophes and Wonders 1146 1. Both Catastrophes and Wonders Involve Enormously Large Impacts 1147 2. Both Catastrophes and Wonders Implicate Risk and Uncertainty 1150 3. Both Catastrophes and Wonders Implicate Intertemporal Distributions of Costs and Benefits 1153 4. Both Catastrophes and Wonders May Trigger Cognitive Phenomena Related to Processing Large Impacts and Probabilistic, Uncertain, and Intertemporal Events 1156 B. Important Differences in Catastrophes and Wonders 1157 1. Catastrophes are Bad, While Wonders are Good 1157 2. Catastrophes are Likely to Invoke Loss Aversion Because They Implicate Losses from the Status Quo, Whereas Wonders Are Likely to be Viewed as Potential Gains 1158 3. Catastrophes Make People Poorer and Sicker; Wonders Make People Wealthier and Healthier 1159 4. Catastrophes Implicate Fear and Pessimism, Whereas Wonders Implicate Hope and Optimism 1161 IV. INTERACTIONS AND IMPLICATIONS 1165 A. Countervailing Wonders and Catastrophes 1166 B. Asymmetric Policies and Loss Aversion 1168 V. CONCLUSION 1171 I. INTRODUCTION

   Climate action is paramount. Climate change is having far-reaching effects on agricultural productivity and food security. It is among the main reasons for the record numbers of people compelled to migrate... --William Lacy Swing, U.N. Migration Director General (1) Human migration precipitated by environmental and climatic changes can be traced back to the dawn of human civilization. (2) It was not until the last half-century, however, that scholarly and political interest converged on the connection between environmental shifts and human movements. In the 1970s, Lester Brown of the World Watch Institute coined the term "environmental refugee," (3) which Essam El-Hinnawi later elaborated in a 1985 United Nations Environment Programme (UNEP) policy paper. (4) Brown and El-Hinnawi, along with contemporary researchers, policymakers, and advocates, brought the phenomenon of environmental migration to the fore. In the last decade, academic and political interest in the relationship between the environment and migration has resurged, (5) with burgeoning evidence that anthropogenic climate change has led and will continue to lead to unprecedented levels of displacement and relocation. Forecasts of climate migration range from 200 million to one billion migrants by 2050, (6) with more than 143 million internal migrants projected for sub-Saharan Africa, South Asia, and Latin America alone. (7)

   Climate migration arises at the intersection of two conceptually complex and politically contentious subjects: climate change and migration. Climate migration occurs when changes in climatic conditions, or their impacts on weather events or natural environments, induce, at least in part, humans to relocate. (8) Its complexity stems from its multicausal, multilateral, and multidisciplinary nature. It is multicausal both in the sense climate change manifests itself in multitudinous drivers of migration--chief among them, global warming, sea level rise, floods, droughts, ice melt, and extreme weather events (9)--and in the sense climate change may be just one of many factors behind migration decisions. (10) It is multilateral, impacting countless communities from the local to the global. (11) It is multidisciplinary in that it brings together multiple bodies of law--environmental, immigration, and international human rights and humanitarian--and conceptual fields--sociopolitical, scientific, and ethical. (12)

   In part because of the multiple stakeholders, interests, and jurisdictions involved, responses to climate migration have been fragmented and fraught. International dialogue has largely reached an impasse. The U.N. Global Compact for Migration, confirmed in 2018, was hailed as the first major global migration policy to address climate change; (13) yet, it is voluntary and non-binding, (14) and a number of key states, including several European states, the United States, and Australia, have chosen not to adopt it. (15) At the regional and national levels, there has likewise been scant progress. (16) New Zealand's landmark recognition of the impact of climate change as grounds for asylum claims remains the exception, and it eventually dropped its plan to establish a special visa program for Pacific Islanders displaced by sea level rise, primarily because of a prevailing desire of prospective migrants to be able to remain in their own states. (17) Relative to the rate and magnitude of climate change, efforts to adapt law and policy to accommodate or mitigate climate migration have been minimal.

   Academic discussion has perhaps been more robust, albeit similarly segregated. Climate migration scholarship has tended to fall into one of several camps. An early and enduring wave of scholarship has been terminological: scholars have set forth semantic, political, and legal considerations for the various terms invoked to describe climate migration. (18) Other scholars have focused on laying out potential legal and policy solutions, which vary widely in scope and feasibility. (19) Relatively absent from such scholarship is inquiry into the role of conceptual frameworks in perpetuating an intellectual disconnect between growing evidence of the unparalleled effects of climate change on migration and a general failure to produce a proportionate, multipronged response. In this Article, I address this gap in climate migration literature by critiquing two prevailing paradigms of climate migration and proposing the bases for a hybrid approach. In Part II, I provide a brief account of the climate migration predicament now before the international community. In the subsequent two Parts, I analyze two leading frameworks for viewing climate migration. Part III examines the animating principles and fundamental flaws of humanitarianism as conventionally conceived. Under humanitarian theories, which draw on Kantian cosmopolitanism and Rawlsian distributive justice, climate migrants are actors with rights and choices; however, in practice, they are often treated as objects of injustice and support. Part IV explores the underlying premises and shortcomings of prudentialism, which privileges national welfare. Finally, in Part V, I lay the foundation for a new framework of prudential humanitarianism, which offers workable guiding principles for legal and policy responses to climate migration. Motivating this framework and setting it apart from its precursors is the head-on recognition that climate migrants are both victims and actors--victims of anthropogenic climate change for which they are scarcely responsible and of global ambivalence to the harms of climate change, and actors insofar as they have agency, even when constrained in extreme situations in which climate change renders states or settlements uninhabitable. In doing so, I hope to help to lay the groundwork for bridging theoretical and political discourses and for fostering empirically grounded, equality-driven, and actor-oriented responses to one of the most formidable challenges facing our generation.

2. THE RISE AND LANDSCAPE OF CLIMATE MIGRATION

   Climate change is the single biggest threat to life, security and prosperity on Earth.

   -- Patricia Espinosa, U.N. Climate Change Executive Secretary (20)

   1. The Rise of Climate Migration

      Since Homo sapiens began roaming Earth approximately 300 thousand years ago, (21) climate and other environmental forces have shaped human migration patterns. In fact, until relatively recently--about fifteen thousand years ago--the environment was a chief driver of human migration, with changes in physical terrain and natural resources shaping prospects for human survival and recharting the map of human settlement. (22) The spectrum of shifts ranged from long-term evolutions, through ice ages and warm periods, to short-term fluctuations, taking place within and across years. (23) Depending on the circumstances, humans adjusted to these shifts either through in situ adaptation (24) or through migration. (25)

      Changes in climatic conditions periodically uprooted entire human populations. (26) Such migration took the form of long-term, large-scale movements across wide regions, as in the Northern Hemisphere during the "Medieval Warm Period" spanning approximately the ninth and thirteenth centuries and the "Little Ice Age" spanning approximately the sixteenth and nineteenth centuries. (27) The far-reaching ramifications of these historical periods of climate migration--displacing and relocating persons en masse and destabilizing and even catalyzing the collapse of civilizations--may portend what present-day climate change, if left unmitigated, may become. (28)

      This is not to downplay the established role of non-environmental impetuses for migration, which include, inter alia, poverty, socioeconomic inequality, political insecurity, ethnic conflict, and warfare. (29) Climate change combines with and compounds these economic, social, and political phenomena which, in turn, can give rise to migration. (30) For instance, as historian Philipp Blom notes, during the Little Ice Age, harsh winters and decreased...