Subsidiary protection: Is it the silver bullet to addressing the plight of climate refugees?

23 Sept

Written By GroJIL International Law Under Construction

Greta Berardi

Introduction

Over the last few decades, unsustainable human activities have led to alterations in the biosphere, oceans, atmosphere, and cryosphere, and, in such a reality, the effects of climate change are becoming increasingly more visible, causing irreversible changes in the environment that affect the livelihood and survival of communities. In this scenario, the likelihood of being forcibly displaced due to climate change is becoming significant. According to the International Organisation for Migration (IOM), in the last decades, 218.6 million people have been internally displaced due to climate change, revealing an alarming trend; and further predictions estimate that 1.2 billion people will become ‘climate refugees’ by 2050.

Presently, no consensus has been achieved to define a climate refugee, which refers to individuals forcibly displaced by climate change (p.372). Under international law, climate refugees lack official recognition as a distinct category in need of protection. This is primarily due to the inherent difficulty of establishing with certainty a causal relationship between climate change and forced displacement, and the strict interpretative requirements (para 75) of the 1951 Refugee Convention, which hinder possible recognition efforts. The opposition of the UNHCR to broadening the scope of the Refugee Convention represents a further obstacle, mainly due to the fear of weakening the refugee status which the Convention provides.

In the absence of a comprehensive legal framework that addresses the issue, victims of climate change will remain highly vulnerable and unprotected when crossing international borders in search of shelter. This blog post aims to illustrate that climate displacement can be addressed through subsidiary protection, developed by the European Union (EU), specifically through the Qualification Directive (QD) 2011/95/EU, now repealed by Regulation 2024/1347, which has been conceived to complement refugee status, and which extends legal protection to individuals who are unable to meet the strict criteria established by the Refugee Convention.

Existing framework and judicial decisions:

The 1951 Refugee Convention and its 1967 Protocol are the main legal instruments used in international refugee law, which define the term ‘refugee’ and lay down obligations for state parties in respect of refugees present on their national territory. An individual must fulfil five cumulative requirements to obtain refugee status, and Article 1(A)(2) defines a refugee as:

‘Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country [..]’

In the context of climate-related harm, fulfilling these criteria can be challenging, especially when considering the element of persecution. A landmark case in the field of climate litigation is the Ioane Teitiota v New Zealand case, which, among others, addressed the issue of persecution. The New Zealand Immigration and Protection Tribunal held that the risk of being persecuted must be well-founded on the accounts of facing ‘sustained or systemic violation of core human rights, demonstrative of a failure of state protection’ (para 53). This reasoning entails that persecution must always be carried out by a human agent, and this often is not the case, at least directly, when considering climate-related harm. Climate change is a complex phenomenon, involving multiple actors and decentralisation, and the case highlights that courts apply standards of direct human agency for refugee claims while dismissing the indirect contributions of major contributors to greenhouse gas emissions (GHG).

Proposals for an amendment to the Refugee Convention have been advanced by several nations, such as the Maldives in 2006, that suggest extending the scope of the Convention (p.6). However, as noted by McAdam, a new Convention should not be a solution, as it would shift the focus from preventing and mitigating climate change (p.5) and would not solve the issue of climate change (p.17).

It is also challenging to establish an appropriate nexus ground, the link to one of the Convention grounds, because climate change generally tends to affect people geographically and not based on their race, religion, etc (p.82). Generally, climate-related harm can fall under the ground of ‘membership of a particular social group’ and, as established in Canada v. Ward, it entails three elements, although most importantly, ‘the group must be defined by innate, unchangeable characteristics’ (p.692). In this context, it can be argued that individuals from specific areas, particularly those from island nations, can represent a particular social group as they all have in common the harmful threats produced by climate change (p.16). However, this reasoning fails because the persecutory element must entail a form of discrimination, meaning that the agents of perpetration target a group because of its specific characteristics that set them apart from the rest of society, thereby rejecting random attacks (p.590). Climate change alone cannot act as a persecutor, as environmental harm does not target specific people willingly, but instead impacts society in its entirety. However, as suggested by Sussman, when following a climate disaster, a government deliberately refuses to offer support to a minority because of their membership of a social group (p.62), then the claim could have merit under the Convention.

The main aspects of Subsidiary Protection under Regulation 2024/1347

Access to subsidiary protection is triggered where substantial grounds are proven for believing that, if refouled, an applicant would be exposed to a ‘real risk of suffering serious harm’. Article 15 of the Regulation defines the scope of serious harm, and in particular, the risk of being subject to ‘torture or inhumane or degrading treatment (..) in the country of origin’ can be the most relevant harm in cases of climate change (p.15). This alignment is not merely conceptual, as in Elgafaji v Staatssecretaris van Justitie, the Court of Justice of the EU (CJEU) held that Article 15(b) corresponds to Article 3 of the European Convention on Human Rights (ECHR) (para 28). Consequently, the jurisprudence on inhumane treatment developed by the ECtHR can support the interpretation of Article 15(b). Soering v. UK acts as the foundational authority, as the ECtHR, for the first time, established the prohibition of expelling or extraditing an applicant where he would be placed at a ‘real risk of treatment going beyond the threshold set by Article 3’ (para 111). This landmark ruling implicitly recognised that Article 3 ECHR impedes refoulement when the ill treatment attains a minimum level of severity (para 100), considering methods, duration, etc on a case-by-case basis (para 162).

To date, no judgment of the ECtHR has addressed whether Article 3 ECHR applies to cases of inhumane treatment perpetrated by climate change. Nonetheless, the extensive jurisprudence developed on Article 3 ECHR can act as an interpretive tool, especially where climate change makes an individual powerless, by depriving him of his adequate living conditions (para 221) and by exposing him to extreme mental pain (p.76-79).

Article 6 of the Regulation governs the identity of the perpetrator, confining the category of actors of serious harm to the state, parties controlling the state and non-state actors. In M’Bodj v Etat Belge, the CJEU reinforced this restriction, stating that ‘harm must take the form of conduct on the part of a third party’ (para 35) adding that ‘risks to which the population of a country or a section of the population is generally exposed do not normally in themselves create an individual threat which would qualify as serious harm’ (para 36). This restrictive interpretation leaves climate-induced displacement largely outside the scope of the Regulation. Attribution is diffuse given the multiplicity of actors implicated in causing climate change, with the result that liability is dispersed and the link between cause and harm is weakened. As a result, Article 6 of the Regulation is extremely limited in its protection scope in the field of climate-induced displacement and may only prove suitable when direct human agency can be established, such as in cases where the state causes serious harm by implementing inadequate responses in managing or preventing natural catastrophes (p.385). By contrast, a different logic operates outside of the EU’s legal framework. In the Teitiota case, the Human Rights Committee (HRC) accepted that ‘the effects of climate change may expose individuals to a violation of their rights under articles 6 or 7 of the Covenant, thereby triggering the non-refoulment obligations of sending states’ (para 9.11). This reasoning leans towards a risk-based approach rather than resting purely on human agency. Once an applicant establishes that the threat to life is both personal and imminent threat(para 9.3), then the general assessment moves away from the search for a direct human perpetrator towards a broader source of danger. Article 3 ECHR rests on the same premises, since the removal of an individual to a place where he would face a real risk of inhuman or degrading treatment renders the removal unlawful in itself.

The detrimental effects of climate change as a form of inhumane treatment

As presently construed, subsidiary protection protects only those in situations in which an identifiable human agent perpetrates the harm, and this requirement curtails its protective potential considerably. The limitation is not, however, fatal. Subsidiary protection retains its usefulness provided that the concept of serious harm is read as accommodating the detrimental effects of climate change within the notion of inhumane and degrading treatment (p16).

The ECtHR has come close to expanding the scope of Article 3 ECHR. In Duarte Agostinho and Others v Portugal and Others, the Court noted, without resolving, the question whether the applicants’ exposure to climate change could fall under the scope of Article 3 ECHR (para 68). The case-law developed by the ECtHR does show a comparatively elastic understanding of the conduct capable of amounting to inhumane and degrading treatment. ‘Intense physical and mental suffering’ (para 120) qualifies as inhumane treatment, but also ‘a permanent state of anxiety’ can fall under Article 3 ECHR. An interpretation of that breadth leaves room for climate-induced harm to be characterised in the same terms. Mavronicola, has argued this in relation to climate-anxiety (p.219-220), maintaining that this condition, which leads to a loss of hope and generates fear and powerlessness in those who experience it, produces a state that the ECtHR has already recognised as a violation of Article 3 ECHR(p.220).

The principal obstacle is that the impacts of climate-related harm are typically borne by a population at large rather than by identifiable individuals (p 590), whereas individualisation is a precondition of qualification under the Regulation. Article 3 imposes an analogous demand: conditions of generalised violence or instability are not on their own enough to bar removal (para 70), and an applicant must prove a special distinguishing feature that sets them apart from the rest of the population (para 112). Vulnerability is one route to satisfying that requirement, and age is among the characteristics the Court has treated as relevant. In Bouyid v Belgiumthe ECtHR held that: ‘Police behaviour towards minors may be incompatible with the requirements of Article 3 simply because they are minors, whereas it might be deemed acceptable in the case of adults’ (para 110). Within the context of climate-related harms, the reasoning suggests that the mental suffering climate change inflicts on children may, by reason of their age alone, be sufficient to meet the Article 3 threshold (p.17).

Membership of a group offers a second protection route under the Regulation. Where an applicant belongs to group systematically subjected to ill-treatment (para 132), Article 3 is engaged when there are reasons to believe that the risk is real (para 132), without requiring additional proof of an individual risk. SERAC and CESR v Nigeria demonstrates how that mechanism operates in an environmental setting. The complaint concerned the Ogoni, a minority community subjected on a sustained basis to environmental degradation arising from oil operations conducted by the state-owned NNPC (para 1). Among the findings was a breach of Article 4 of the African Charter, which protects the right to life, as the government had backed targeted killings of community members and the exploitation of land on which the Ogoni depended for their survival, all in the service of oil extraction (paras 67–69). This case highlights that where a government supports deliberate, targeted environmental destruction directed at a minority, the resulting situation is one of systematic exposure to ill-treatment based on group membership, and that is a situation which may fall under the scope of Article 3 (p.17).

A final question that is necessary to be assessed concerns whether the state has fulfilled its positive obligations in shielding the applicant from inhumane and degrading treatment, and what follows if it has failed to do so. In climate matters, the breach is likely to consist either in a failure to put adequate mitigation measures in place or in a refusal to curb emissions. The ICJ’s Advisory Opinion on Climate Change has now confirmed this approach. States are under a duty to safeguard the climate system so that individuals may effectively enjoy their human rights (para 403); a deliberate failure to do so amounts to an internationally wrongful act and sets in motion a ‘panoply of legal consequences’ under the law of State Responsibility (para 445). Importantly, the relevant legal standard is not one of result, but rather examines whether the state has failed to adopt all measures which are within its power to prevent significant harm (para 409). What remains is to identify the forms of conduct capable of engaging a violation of Article 3 ECHR. Portillo v Paraguay supplies one example: The HRC found that a failure to prevent the spraying of toxic agrochemicals in the proximity of the applicant’s residential premises interfered with the applicant’s right to life and freedom from inhumane treatment, underscoring that hazardous activities attract a corresponding duty of care. MSS v Belgium supplies another interesting example, as the Court insisted that states must provide secure living conditions compatible with human dignity (para 221). Taken together, these cases point to a single conclusion: A state that knowingly disregards its duty of care and contributes actively to conditions undermining human dignity, for example, by allowing land exploitation that degrades the environment in which an applicant lives, may breach Article 3 ECHR and thereby open the door to subsidiary protection (p.18).

The difficulty in bringing the detrimental effects of climate change within the scope of inhumane and degrading treatment is ultimately one of accountability, since climate change alone will unlikely meet the Article 3 ECHR threshold. The provision is engaged where the severity requirement is satisfied and where the applicant’s physical and mental condition is attributable to something the state has done or failed to do. The fact that the effects of climate change may be experienced universally this may not preclude individuality. Some individuals bear the consequences far more heavily than others, which is why receiving states must scrutinise conditions in the country of origin closely, as environmental degradation is capable in certain settings of amounting to ill-treatment. Courts must also ask whether exposure to environmental degradation was intentional on the state’s behalf, since deliberate exposure meeting the severity threshold will engage Article 3. Whether climate change qualifies as inhumane and degrading treatment therefore turns, in the last analysis, on the extent of the state’s participation in creating conditions irreconcilable with Article 3.

Conclusion

The Refugee Convention, as it stands, protects too narrowly and answers poorly to the displacement patterns that now characterise climate-driven movement. Subsidiary protection is the more promising route. Its advantage lies in the notion of serious harm, which, though defined, retains considerable elasticity, above all as to the kinds of treatment capable of meeting the Article 3 threshold. With domestic and international courts displaying a growing willingness to engage with climate litigation, subsidiary protection may well serve, at least in the near term, as a workable mechanism for those who can establish a risk of inhumane and degrading treatment (p.19).