Blog post by Francesco Negozio, PhD Candidate in Public, Comparative, and International Law at Sapienza University of Rome, UNHCR designated Expert in International Protection and Human Rights at the Territorial Commission for the Recognition of International Protection of Rome, and RLI Research Affiliate (francesco.negozio@uniroma1.it).
This post is partially adapted from a comparative analysis published in the current issue of the Quarterly on Refugee Problems – AWR Bulletin.
Introduction
Impact of climate change and environmental degradation on human mobility is widely recognized by academics and States. However, unlike other categories of forcibly displaced persons, people who are forced to leave their homes due to environmental and climate hazards crossing an international border are not entitled to any ad hoc protection regime under current conventional law. However, International Human Rights Law (IHRL) and, to a minor extent, International Refugee Law (IRL) forbid the expulsion of those migrants who are unable to return to their country in dignity and safety due to environmental reasons. This interpretation has been fostered by the recent practice of the UN Human Rights Committee (HRC), which confirmed the applicability of the non-refoulement principle when the consequences of climate change are likely to put the applicant’s right to life at risk.
At the same time, the HRC seems to hint that the role of International Law in dealing with environmental and climate-displacement has been sufficiently investigated by legal researchers. By contrast, national immigration and asylum systems could be further examined, including with the aim of offering new practical solutions to legal issues arising from environmental and climate displacement, by adopting a bottom-up approach.
In this framework, the Italian legal system is remarkably significant, as it is distinguished by two different kinds of complementary protection (the ‘humanitarian/special protection’ and the ‘residence permit for calamity’), both potentially addressing displacement induced by environmental hazards. A brief analysis of the Italian system could serve as a practical example and could contribute to identifying the best suitable approach to environmental and climate-displacement, including at an international level.
Complementary protection on humanitarian grounds: from ‘humanitarian protection’ to ‘special protection’
The Italian legal framework before 2018 – when Matteo Salvini, the leader of the right-wing party ‘League’, was appointed as Minister of Interior – consisted of three protection regimes for third-country nationals: refugee status, within the meaning of Article 1(A) of 1951 Geneva Convention; subsidiary protection, complying with the EU ‘Qualification Directive’ (recast) 2011/95; humanitarian protection, pursuant toArticle 5.6 of the Immigration Law (Legislative Decree no. 286/1998). The latter was intended to comply with binding international obligations (including the non-refoulement principle) and constitutional rules (particularly, Art. 2 of the Italian Constitution on fundamental human rights and Art. 10.3 on political asylum).
Humanitarian protection, therefore, represented an example of complementary protection, aiming at protecting migrants, not qualified as refugees or subsidiary protection beneficiaries, but in respect of whom a removal order would have violated other international and constitutional obligations. Both the administrative practice and the jurisprudence gradually included environmental and climate hazards within the meaning of Article 5.6 of Legislative Decree no. 286/1998, providing residence permits on humanitarian grounds to this group of aliens. The applicability of the humanitarian protection in the event of environmental disasters was recently confirmed by a verdict of the Supreme Court of Cassation: the Court ordered the release of a humanitarian residence permit to a foreign citizen coming from the Niger Delta Region, basing its decision on the interpretation of Article 6 ICCPR provided by the HRC in the Teitiota Case. As stated by the Court of Cassation, the judge, in addition to ascertaining the existence of an armed conflict in the country of origin, must assess whether the asylum seeker would be forcibly returned to «any context that is suitable for exposing his/her rights to life, freedom and self-determination to the risk of elimination or reduction below the minimum threshold, expressly included (…) the cases of environmental disaster, as defined by art. 452 quater Criminal Code, climate change and the unsustainable exploitation of natural resources» (Court of Cassation, Order of 12 November 2020, no. 5022, translation by the author).
Humanitarian protection was at the centre of the 2018 parliamentary election campaign, during which right-wing parties repeatedly criticised its existence [1, 2], which would have contributed to the so-called «invasion of illegal migrants» or «fake refugees». As soon as a government was established by the populist parties ‘League’ and ‘Five Stars Movement’ (M5S), the newly appointed Minister of Interior Matteo Salvini put an end to this perceived misuse. Article 1 of Decree-Law no. 113/2018 (also known as ‘Salvini Decree’ or ‘Immigration and Public Security Decree’) repealed the institution of humanitarian protection, removing any reference to serious humanitarian reasons and the constitutional and international obligations from Article 5.6 of Legislative Decree 286/1998. At the same time, in order to cut down and typify residence permits issued on humanitarian grounds, the decree established new circumstances for ‘special cases of temporary residence permits for humanitarian needs’. In particular, the newly-established ‘special protection’ (Art. 19) covered victims of torture, persecution, and massive violations of human rights, narrowing the number of potential beneficiaries when compared to the previous humanitarian protection.
In 2019, the M5S-League government collapsed and was replaced by a new government with the participation of the M5S, the Democratic Party, and other minor left-wing parties. The new government – chaired by the same Prime Minister, Giuseppe Conte – intervened to withdraw some of the provisions contained in Decree-Law no. 113/2018. To this end, by enacting Decree-Law no. 130/2020, the government reintroduced a comprehensive form of complementary protection by substantially broadening the application and the content of special protection.
The amended special protection grants a two-year residence permit and is convertible into a residence permit for work purposes, similarly to the previously in force humanitarian protection. Special protection under Art. 19 of the Immigration Law shall be granted to any individual whose return would contravene international and constitutional rules, including – but not limited to – prohibition of torture, inhuman or degrading treatment, prohibition of any form of discrimination and right to respect for private and family life.
In this regard, special protection is likely to inherit the personal scope of humanitarian protection. Therefore, it can be assumed that protection of environmental and climate-displaced people, originally ensured by humanitarian protection, must similarly derive from the new provisions on special protection.
Ad hoc protection for environmental and climate-displaced people: the ‘residence permit for calamity’
As previously outlined, Article 1 of the ‘Salvini Decree’aimed at specifying and circumscribing special cases of temporary residence permits for humanitarian needs, including by introducing a ‘residence permit for calamity’.
The residence permit for calamity was issued by the Quaestor (Chief of Police) «when the country to which the foreigner should return [was] in a situation of contingent and exceptional calamity that [did] not allow the return and stay in safe conditions», as laid out by the new Article 20 bis of the Immigration Law. The residence permit for calamity had a duration of six months, renewable once, and was not convertible into a residence permit for work purposes.
As above-mentioned, Decree-Law No. 130/2020 maintained the residence permit for calamity, expanding its scope and content. Art. 1, paragraph 1(F) of the Decree-Law no. 130/2020 replaced the formulation «contingent and exceptional» with «serious» calamity, removed the limitation related to the renewal and introduced the possibility of conversion into a residence permit for work reasons.
This intervention, although favourable in its aim, risks being counterproductive from the perspective of potentially affected migrants.
In the intentions of the right-wing government, the residence permit for calamity was aimed at granting protection to one of those categories for which repatriation would not have been allowed under international law, previously covered by humanitarian protection.
By reintroducing a comprehensive form of complementary protection – the amended special protection – the case of migrants, for whom a calamitous situation (be it contingent or persistent, exceptional or serious) does not allow the return and stay in the country of origin, seems to be sufficiently covered, falling among those obligations of international law leading to the application of Art. 19 of the Immigration Law.
An interpretation of Article 20 bis as lex specialis prevailing on Article 19 would produce a significant reductionin terms of protection of environmental and climate-displaced persons, as they would be provided with a residence permit significantly shorter (6 months) than that to which they would have been entitled in the absence of that same provision (2 years). However, such an interpretation would be in sharp contrast with the ratio legis that underlies the legislative intervention of 2020 – of a clear expansive orientation – and would raise several doubts about its compliance with the Italian Constitution.
In this sense, assuming the existence of two vulnerable applicants, one of which affected by a serious calamity in his/her country of origin, any unfavourable treatment that would apply to the latter pursuant to Art. 20 bis would cause unfair discrimination between two similar situations.
Paradoxically, the previous restrictive rule, limiting the scope of calamity protection to cases of contingent and exceptional disasters, would seem to be more adequate, being appliable only to provisional on-set disasters allowing repatriation in safety in the short run and, therefore, justifying a shorter duration of the residence permit.
The very little jurisprudence produced so far in the matter of residence permits for calamity has not clarified yet the innovative scope of Art. 20 bis and its difference from special protection. In the only related judicial decision known to date, a residence permit for calamity was granted to an Albanian national, taking into account the fact that the applicant was «resident since 2018 in Italy together with her family (…) being integrated into the Italian social context» and «following the 2019 seismic event involving Albania, (…) lost her home». Therefore, «in the event of a return to her country of origin, she would [have been] exposed to a serious survival situation» (Judge of the Peace of Bari, Order of 30 June 2021, n. 450, translation by the author). In this case, however, the judge could have reached a further protective verdict, as the case arguably met the criteria for the application of special protection, including on the basis of her right to respect for private and family life.
Turning to procedural rules, the difference between the two residence permits is not negligible: both can be requested before the Quaestor or obtained as a result of a judicial appeal, but the special protection can be recognized in the framework of the Refugee Status Determination (RSD) as well. This is particularly relevant, considering that the Quaestor has neither the expertise nor the competence set by law to verify the condition in the country of origin and, therefore, it is unknown how the calamitous situation will be evaluated. On the contrary, special protection is usually recognized at the end of an individual assessment of the applicant’s vulnerability carried out by RSD experts.
Conclusion: refocusing legal research and policy-making from calamity evaluation to vulnerability assessment
Decree-Law no. 113/2018 has radically changed the legislative landscape of international protection in Italy. The subsequent Decree-Law no. 130/2020 intervened to correct some of the distortions that had been created.
The residence permit for calamity was introduced in 2018 to fill the protection gap created by the repeal of humanitarian protection: although international obligations of the State relating to the prohibition of expulsion and return of certain categories of migrants remained in force, they were not associated with a univocal form of protection. Currently, by broadening the scope and content of the special protection under Article 19, containing an indirect reference to those obligations, that gap has disappeared and the residence permit for calamity appears to be unnecessary or dangerous.
At a closer look, two different conceptions of international protection are identifiable: on the one hand, there is the evaluation of the objective cause considered as triggering displacement, responding to the need to typify protection, usually leading to a restrictive application; on the other hand, the assessment of applicant’s subjective condition through a human rights-based determination process, consisting of a comprehensive analysis of his/her vulnerability.
The Italian case suggests that complementary protection regimes having a broader spectrum and complying with IHRL, such as the former humanitarian protection or the current special protection, would likely prove more efficient for those displaced people, basing on individual vulnerability rather than on the severity of the environmental or climate-related event considered to be triggering the displacement.
On the other hand, group-based protection regimes (i.e. Temporary Protection), based on the seriousness of the calamity, can serve in the case of events involving mass displacement, provided that individual protection needs are adequately addressed and legal status is disciplined.
This lesson can arguably be extended to additional national systems as well as to the international legal framework.
Rather than proposing ad hoc protection regimes by adopting new international protocols, conventions or guidelines on environmental and climate-displacement, which could prove useless or counterproductive, an evolutive interpretation of current international legal tools should be consolidated, extending their personal scope to new vulnerabilities emerging from climate change and environmental degradation.
Legal research might play a key role in this process by refocusing its efforts from the objective cause assumed as triggering displacement to arising individual vulnerability. As a first result, this would entail the irrelevance and the overcoming of certain defining issues which have characterized and partially congested the doctrinal debate on environmental migration and climate displacement to date. Furthermore, assessing immigration and asylum systems according to the level of protection afforded to environmental and climate-displaced people, not merely on their explicit inclusion and definition, and promoting best practices would contribute to fostering a dynamic interpretation of existing legal tools.
References:
Cantor D J (2021) ‘Environment, Mobility, and International Law: A New Approach in the Americas’, Chicago Journal of International Law: Vol. 21: No. 2, p. 262-322.
Kälin W, Schrepfer N (2012) ‘Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and Possible Approaches’;
McAdam J (2012) ‘Climate Change, Forced Migration, and International Law’;
McAdam J (2020) ‘Protecting People Displaced by the Impacts of Climate Change: the UN Human Rights Committee and the Principle of Non-refoulement’ American Journal of International Law, Vol. 114 : No. 4, p. 708-725;
McAdam J (2021) ‘Displacement in the context of Climate Change and Disasters’ in Costello C, Foster M, McAdam J (eds) ‘The Oxford Handbook of International Refugee Law’, p. 832-847;
UNHCR (2020), ‘Legal considerations regarding claims for international protection made in the context of the adverse effects of climate change and disasters’;
Italian Court of Cassation, Order of 20 March 2019, no. 7832;
Italian Court of Cassation, Order of 12 November 2020, no. 5022;
Judge of the Peace of Bari, Order of 30 June 2021, no. 450.
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