“sic utere tuo, ut aliaenum non laedas”
“Use your own property so as not to injure that of another”. This maxim[1], relating to a limitation of the sovereignty of States, contains a cardinal principle enshrined in both the civil and common law systems and, more broadly, in customary international law. This restriction, also known as the “principle of good neighborliness” in international environmental law, applies to activities within a national territory that can harm other states. The principle establishes two types of states erga omnes Duties: The first is positive due diligence (conduct as Bonus family man in Roman law), the second is a negative obligation not to cause environmental damage, or as John Stuart Mill would call it: the “harm principle”. A liability ex delicto as a legal consequence of cross-border environmental damage such as climate change. Then one could ask to what extent individuals and institutions must be held responsible for climate change and its consequences, including migration. A reasonable approach would be to what extent they contributed causally to the problem. However, backward-looking responsibility sometimes does not excuse the voluntary actions of actors, as Aristotle argued in his Ἠθικὰ Νικομάχεια[2].
Public awareness of human activities as drivers of climate change, the latter being the most important driver of environmental change lato sense, dates from the 1980s. In 1988, NASA scientist James Hansen testified before Congress, warning of the danger of global warming. As a result, the media and public began paying more attention to the causes and effects of climate change. The following year (1989) the United Nations established the Intergovernmental Panel on Climate Change (IPCC). From these moments, we could consider some actors who are credited with proactive responsibility for climate migration, particularly the more developed countries (MDCs). This is because their greenhouse gas emissions (GHGs), most of which are due to past and present industrialization, alter the energy balance of the climate system, leading to a multitude of natural disasters that occur most of the time in less developed countries (LDCs). appear ). When these natural disasters occur, climate-related migration is predicted to be inevitable as an adaptation strategy.
With global warming increasing the temperature of the planet, so is the likelihood that European countries will face a massive wave of climate refugees. According to the latest World Bank estimates (Groundswell, 2021), climate change could cause 216 million climate refugees by 2050 if no further action is taken. However, the report also finds that climate-related migration could be reduced by almost 60-80% if governments reduce their greenhouse gas emissions as quickly as possible and create resilient and inclusive development plans for each phase of climate migration to ensure positive adaptation. Despite these predictions and the widespread awareness that climate change is significantly affecting migration patterns, “climate migrants” do not meet the legal definition of “refugee” provided by the 1951 Refugee Convention (UNHCR 1951) and its 1967 Protocol, and therefore have not entitled to international protection.
Europe is the third largest emitter of greenhouse gases. If we want to do a fitness check of European legal migration acquis, some complementary mechanisms from current EU policy instruments could be applied to address the challenges posed by environmental migration. With the Tampere EU Council in 1999, there was a growing belief that a successful immigration policy requires action on both an internal and an external dimension. As a result, the EU began developing what is known as the “external dimension of cooperation on immigration and asylum issues” to manage migration through cooperation with the countries of origin or transit from third countries and an internal body of legislation (“internal dimension”) for third-country nationals .
The EU’s external migration and asylum policies are set within the overarching framework of the Global Approach to Migration and Mobility (GAMM) launched by the Commission in 2011. According to this framework, however, the issue is delegated to the local level of affected countries mainly through development cooperation measures and humanitarian aid, which can be considered “mitigating” in nature as they do not address the roots of climate migration. The main external measures that could be applied to climate-related migration are the Mobility Partnership, the Regional Development and Protection Programme, and the EU Development and Humanitarian Aid Policy.
Regarding the internal dimension, in the Common European Asylum System (CEAS) we find the subsidiary and temporary protection contained in the Qualification Directive and the Temporary Protection Directive respectively. Other measures that could be applied are foreseen in the Return Directive, labor immigration legislation and some Member State (MS) legislation.
the qualification policy (2004/83/EC) on subsidiary protection ensures that Member States apply the same criteria when classifying third-country nationals (TCNs) or stateless persons as refugees or as persons in need of international protection. There is a possibility that Art. 15(b) of the Directive includes the case of subsidiary protection for climate migrants, since it states that the persons entitled to protection are also those who suffer “inhuman or degrading treatment”. One of the obstacles to the application of Article 15(b) of the Qualification Directive is that it only applies to persons already residing in the EU Member States, at their borders or in their territorial waters. Therefore, it is very likely that climate refugees will have to resort to illegal means to enter or stay in EU territories. In addition, people who have received subsidiary protection after an environmental disaster could potentially lose it if the situation in their country of origin eases.
the Temporary Protection Policy (Directive 2001/55/EC) was introduced to provide a concrete and urgent response to the mass influx of displaced persons following conflicts in the former Yugoslavia and Kosovo in the second half of the 1990s, as widely reported by Modern Diplomacy (among others). in the past. While the Qualification Directive provides protection only in an exhaustive list of cases, the provision of temporary protection in Art. 2(c)ii can be broadly construed to include environmentally displaced persons as it also applies to “persons in serious danger of, or who have been victims of systematic or generalized violations of human rights”. However, this guideline also has some limitations. According to Article 1, protection only applies in the event of a mass influx and the Directive does not provide a well-defined protection mechanism, but leaves a wide margin of discretion to Member States; it is only pointed out that they should offer residence permits for the entire period of protection and, due to the urgency, reduce the formalities to a minimum (Art.8(3)). Until the Council, according to a Commission proposal (Article 5), has to determine with a qualified majority whether or not there is a mass influx of displaced persons, the mechanism will hardly be adopted, since unsuccessful attempts will result in people being called upon to apply it en masse from Libya (2011), Tunisia (2011), Ukraine (2014) and Syria (from 2011) have already shown us. The lack of activation of this mechanism even in the context of the Arab Spring and the Syrian civil war, its lengthy and arduous political process required, makes its application in relation to environmentally displaced persons even more unlikely.
In the absence of international protection, Article 2 or 3 of the European Convention on Human Rights (ECHR) could still prompt the non-refoulement provision enshrined in the ECHR Returns Policy (EU Directive 2008/115/EC). This directive establishes common standards and procedures that Member States must apply when returning illegal immigrants. Pursuant to Article 5, when transposing the Directive, Member States respect the principle of non-refoulement and pursuant to Article 9(1), they postpone removal if the principle is breached. If a country is hit by a natural disaster, MS could apply the non-refoulement principle.
Some climate migrants might also raise labor migration to reduce displacement. However, the “Blue Card Directive” from 2009 only covers highly qualified employees with a relevant salary limit. On the other hand, the “Seasonal Migrant Workers Directive” adopted in 2014 could be used as an adaptation strategy, but it lacks the necessary sufficient human rights guarantees. In addition, primary law (TFEU) leaves Member States the right to control the number of workers admitted to their labor market. Whether a climate refugee can use labor migration as an adjustment mechanism to escape environmental degradation in the country of origin depends heavily on the respective national government of the EU.
At Member State level, only Italy, Sweden and, in certain aspects, Finland went beyond the obligations required by EU and international law. They were granted special protection status related to climate change and natural disasters for third-country nationals who are not eligible for refugee or subsidiary protection status. However, the regulations in Finland and Sweden were eventually temporarily lifted after the huge migration flows in 2015-16.
So far, the European Union’s policy approach to the phenomenon of climate migration has appeared to be reactive rather than proactive. After reviewing the current European legal framework Status quowe can confirm that it is marked by a legal impasse in protecting climate refugees.
Currently in European acquisthere is no specific instrument applicable to them actual species of climate migration. The consideration of “climate justice” is also missing. A possible reason could be that the external dimension of EU migration policy in the form of development cooperation and humanitarian aid has been prioritised. As climate refugees are unlikely to be granted international protection under the Geneva Convention, the EU should start to act autonomously. It could first create a more coherent complementary protection regime, using as models those already developed by its Member States (notably Italy, Sweden and Finland). In addition, the Lisbon Treaty provides the necessary rationale for an overhaul of asylum and immigration policies, and one could be one of them ad hoc Ordinance for Environmentally Dispersed People.
[1] Bracton, Volume 3, page 163.
[2] Aristotle, Nicomachean Ethics, Book III. The Internet Classics Archive translated by WD Ross http://classics.mit.edu/Aristotle/nicomachaen.html.
