Subsidiary protection: Is it the silver bullet to addressing the plight of climate refugees?
Greta Berardi
Introduction
‘If we have not taken dramatic action within the next decade, we could face irreversible damage to the natural world and the collapse of our societies’. Through this alarming statement, Sir Attenborough underscores the unprecedented effects of climate change and the impending urgency to act before humanity reaches a point of no return. In the last few decades, unsustainable human activity has 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, 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 (IPT) 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 suggested 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), such as natural disasters. 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, the government deliberately refuses to offer support to a minority because of their membership of a social group, then the claim could have merit under the Convention.
Subsidiary protection
An individual can benefit from subsidiary protection when there are reasons to believe that, if refouled, he would face a ‘real risk of suffering serious harm’. Serious harm is defined under Article 15 QD, 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. The Court of Justice of the European Union (CJEU) has confirmed in Elgafaji v Staatssecretaris van Justitie that Article 15(b) corresponds to Article 3 of the European Convention on Human Rights (ECHR) (para 28), and therefore, the case-law on inhumane treatment developed by the European Court of Human Rights (ECtHR) can act as a guiding tool when interpreting Article 15(b). Notably, in Soering v. UK, the ECtHR has established the prohibition of refoulement where extradition will subject the applicant to a ‘real risk of treatment going beyond the threshold set by Article 3’(para 111). The ill treatment must meet a minimum level of severity (para 100), and an assessment is made on a case-by-case basis, taking into account methods, duration, etc (para 162). Although the Court has never pronounced itself on a case of inhumane treatment caused by climate change, the case law on Article 3 ECHR can act as a guiding tool, in particular 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 QD specifies that serious harm may only be perpetrated by the state, parties controlling the state and non-state actors, and the CJEU in M’Bodj v Etat Belge, has confirmed that ‘harm must take the form of conduct on the part of a third party’ (para 35) and 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 interpretation significantly limits the scope of the QD because climate change lacks distinguishable human agency, as multiple actors are often involved, weakening the link between cause and harm (p.12). Consequently, the scope of Article 6 QD extends solely to instances in which an identifiable actor, such as the state, causes serious harm by implementing inadequate responses in managing or preventing natural catastrophes (p.385). In contrast to this strict actor-based approach, in the Teitiota case, the Human Rights Committee (HRC) held 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, where, if an individual can prove both a personal and imminent threat (para 9.3), then the general assessment shifts from focusing on a direct human perpetrator to a broader source of harm. This idea is rooted in Article 3 of the ECHR, as the removal of an individual to a place where they face a real risk of inhuman or degrading treatment would render refoulement unlawful.
The detrimental effects of climate change as a form of inhumane treatment
In its current form, subsidiary protection remains limited to instances where a clear human agent can be identified as a perpetrator of harm, restricting the reach of this protection mechanism. Nonetheless, subsidiary protection still represents an effective solution where the notion of serious harm is interpreted to include the detrimental effects of climate change within the scope of inhumane and degrading treatment.
In this regard, the ECtHR, in Duarte Agostinho and Others v Portugal and Others, raised the question, albeit unanswered, of whether the exposure of the applicants to climate change could fall under the scope of Article 3 ECHR (para 68). The jurisprudence of the Court tends to reveal a flexible approach in terms of what conduct amounts to inhumane and degrading treatment. Perhaps, ‘intense physical and mental suffering’ (para 120) constitutes inhumane treatment, but also ‘a permanent state of anxiety’ can fall under Article 3 ECHR. Therefore, this extended scope may allow for harm caused by climate change to amount to inhumane treatment. As suggested by Mavronicola, climate-anxiety (p.219-220) can amount to inhumane treatment because it elicits in the victim a sense of fear and powerlessness, and at the same time, it leads to a loss of hope, which the ECtHR has recognised as a violation of Article 3 ECHR(p.220).
A significant issue with climate-related harm is that the effects of climate change are often experienced generally by the population rather than on an individual level (p.590), which is a conditional requirement of the QD. Under Article 3 ECHR, general situations of violence and instability do not suffice alone (para 70) to trigger non-refoulment; applicants will have to demonstrate a special feature that distinguishes them (para 112). In such circumstances, the Court can consider whether the victim is in a vulnerable position; perhaps the age of the applicant might play an important role, as affirmed in Bouyid v Belgium, where the Court 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). Therefore, by applying a similar reasoning, climate change can expose minors to such a sense of mental pain because of their age that it would be incompatible with Article 3 ECHR.
Furthermore, the Court has established that membership of a group systematically exposed to ill-treatment (para 132) triggers Article 3 ECHR, when there are reasons to believe that the risk is real (para 132), without requiring additional proof of an individual risk. The case SERAC and CESR v Nigeria, examined by the African Court of Human and Peoples’ Rights (ACHPR), illustrates how states can violate minority rights and expose them to ill-treatment by virtue of belonging to a specific group. The case involved the Ogoni minority, who were systematically exposed to environmental degradation resulting from oil exploitation by the state-owned oil company NNPC (para 1). One of the arguments examined was the fact that the Nigerian government violated Article 4 of the African Charter on Human and People’s Rights , which guarantees the right to life, because it supported the targeted killings of community members and land exploitation (essential for the survival of the Ogoni) for oil extraction purposes (paras 67-69). This case highlights that where the government supports targeted and premeditated environmental degradation as a means of oppressing a minority group, then this could have the potential to fall under the scope of Article 3 ECHR, as it would entail the systematic exposure to ill-treatment by virtue of belonging to a minority group.
Finally, it is essential to determine whether a state has fulfilled its positive obligations in protecting the applicant from inhumane treatment and whether a failure to do so can constitute a breach of a state’s duty to protect. In the context of climate change, a violation of a state’s obligation could lie in its inability to adopt sufficient mitigation measures or the unwillingness to reduce its emissions. This approach has now been confirmed by the International Court of Justice (ICJ) in its Advisory Opinion on Climate Change, according to which states have the obligation to protect the climate system to allow individuals to enjoy effectively their human rights (para 403), and an intentional failure to do so, will result in an internationally wrongful act, triggering a ‘panoply of legal consequences’ under the laws of State Responsibility (para 445). However, it is important to recognise that the result is not the determining factor in the attribution of responsibility, but rather the failure to adopt all measures which are within the state’s power to prevent significant harm (para 409). The question that has to be assessed is the type of behaviour that can trigger Article 3 ECHR. For example, in Portillo v Paraguay, the HRC held that the failure to prevent the spraying of toxic agrochemicals in the vicinity of the applicant’s residential premises interfered with the applicant’s right to life and freedom from inhumane treatment, highlighting the need to apply standards of care when carrying out dangerous activities. Moreover, in MSS v Belgium, the ECtHR held that states must guarantee living conditions which respect a human’s dignity (para 221). These examples suggest that where a state intentionally disregards its duty of care and actively contributes to conditions that undermine human dignity, such as permitting land exploitation that degrades an applicant’s living environment, such conduct could amount to a violation of Article 3 ECHR and trigger subsidiary protection.
The complexity of classifying the detrimental effects of climate change as a form of inhumane and degrading treatment lies in establishing state accountability, as climate change alone is unlikely to fulfil the threshold of Article 3 ECHR. Climate change can trigger a violation of Article 3 ECHR where it meets a minimum level of severity and where it physically and mentally affects the victim because of state action or inaction. Although the effects of climate change tend to be universal, some individuals can be affected more than others, and it is in this context that receiving countries should examine with care the situation in the applicant’s country of origin, as environmental degradation in certain contexts can amount to ill-treatment. Finally, courts must consider whether states have intentionally exposed individuals to environmental degradation, which could trigger Article 3 ECHR if a minimum level of severity can be established. The final answer to the question of whether climate change constitutes a form of inhumane and degrading treatment ultimately depends upon the state’s involvement in inflicting conditions which are incompatible with Article 3 ECHR.
Conclusion
In conclusion, in its present form, the Refugee Convention is limited in its protection scope and fails to respond to complex displacement patterns. To this end, subsidiary protection offers a much more promising alternative for climate refugees. The strength of subsidiary protection lies in the concept of serious harm; while defined, the scope remains quite flexible, especially in terms of what type of treatment can meet the threshold of Article 3 ECHR. National and international jurisprudence are starting to reveal a greater degree of activism in the field of climate change, and as such, subsidiary protection, at least in the short term, might constitute an effective protection mechanism for victims of climate change where they can prove a risk of inhumane and degrading treatment.
Author:
Greta Berardi is the Executive Blog Editor at the GroJIL Blog. She recently graduated from the University of Groningen with an LLB in International and European Law and is currently pursuing an LLM in Energy and Climate Law. Greta has a strong interest in climate law and the intersection of energy policy and social justice. She is passionate about contributing to legal and policy solutions that safeguard vulnerable communities in the shift toward a low-carbon future.
