Legal and Judicial Responses to Disaster Displacement in Italy, Austria and Sweden
Climate change and the growing climate crisis are expected to force more and more people to leave their homes. EU law and policy, however, do not explicitly address disaster displacement, making it difficult to measure the extent of cross-border disaster displacement into Europe or to evaluate measures to address the phenomenon. Given the lack of notable policy developments since the 2013 Commission Staff Working Document (Mayrhofer and Ammer), the creation of a new protection framework on disaster displacement or the inclusion of related provisions in the New Pact on Migration and Asylum appears unlikely. Still, recent case law in several EU Member States clearly recognizes protection to people displaced in the context of disasters and climate change (Ammer, Mayrhofer, Scott; Courtoy; Schloss; Scissa). This post introduces legal and judicial responses of selected EU Member States, outlining a) whether protection has ever been granted on environmental grounds; b) if so, what statuses have been provided; and c) the degree of flexibility endorsed by judicial authorities in applying existing protection standards. To this end, this post illustrates three divergent legal and judicial approaches to disaster displacement discernible in Italy, Austria, and Sweden.
Multiple Protection Statuses and Evolutionary Interpretation: The Case of Italy
Italy is currently the only EU Member State to offer explicit and multiple protection statuses to people displaced due to disasters, climate change, and environmental degradation. Currently, three provisions concerning disaster displacement are available, and a fourth still produces legal effects although it is no longer in force. Article 20 of the Consolidated Act on Immigration (CAI) provides collective and temporary protection measures for extraordinary humanitarian needs, including natural disasters (in Italian, disastri naturali), which occurred in non-EU countries. Article 20-bis CAI, introduced in 2018 and amended in 2020, provides for a six-month residence permit due to serious calamity, which might be renewed as long as the claimant’s country of origin remains environmentally unsafe (Scissa, p. 145). Article 19 CAI, also amended in 2020, provides “special protection” against the refoulement of a third country national when there are reasonable grounds for believing that their removal may expose them to a risk of torture, inhuman or degrading treatment, or otherwise to systematic and gross violations of human rights, including the right to private and family life. As of 2018, another form of national protection (humanitarian protection) was granted to persons whose removal would have exposed them to effective deprivation of human rights. Whether this would be the case is to be assessed in light of both the objective situation in the country of origin and the claimant’s vulnerability. The combination of these two elements led judicial authorities to provide humanitarian protection on accounts of famine, floods, earthquakes, and land grabbing. Further protection was granted on the basis of general environmental and climate conditions in the respective home country, if such conditions would jeopardize the core human rights of the individual. Although national protection on humanitarian grounds was repealed in 2018, it still produces effects on pending cases. The far-sighted inclusion of environmental factors among significant grounds for national protection is complemented by the evolutionary interpretation of such provisions promoted by Italian judicial authorities. Whereas Italian judges have consistently issued national protection statuses to people displaced by disasters, they have never issued international protection – namely, refugee status and subsidiary protection pursuant to the EU Qualification Directive (Directive 2011/95/EU) – on account of environmental threats. However, a recent judgement of the Italian Court of Cassation may hint at a future application of subsidiary protection where unbearable environmental conditions in the claimant’s country of origin are caused by human misconduct. The case addresses environmental contamination through the spilling of oil which lead to irreparable pollution that in turn may entail a serious risk for the survival of the individual and thus violating the rights to life and dignity (Scissa, p. 22). Most recently, a constitutional reform has introduced environmental protection as part of the fundamental principles of the Italian Constitution. As the new principle applies in the interest of present and future generations, it might have an indirect effect on strengthening current provisions protecting people who are displaced in the context of disasters.
No Protection Statuses but Evolutionary Interpretation: The Case of Austria
Contrary to Italy, Austrian asylum or migration law does not expressly provide protection on environmental grounds. Nevertheless, judges of Austrian courts have granted subsidiary protection to persons particularly affected by the impacts of severe droughts in Somalia given their particular affectedness due to their e.g. lack of a family support network, profession as a farmer, gender, or affiliation to a minority clan. Although the Court of Justice of the European Union (CJEU) makes it clear that a human actor of serious harm in the receiving State is required under Article 15(b) Qualification Directive, in Austria a real risk of a violation of Articles 2 or 3 of the European Convention on Human Rights (ECHR) upon return in the country of origin is sufficient for granting subsidiary protection – irrespective of the existence of an actor of serious harm (for details see Ammer, Mayrhofer and Scott). In Austria, the jurisprudence of two Supreme Courts certainly influenced decisions on international protection in this regard: The Austrian Constitutional Court found in several decisions a violation of the complainant’s constitutionally guaranteed right to equal treatment of non-nationals relative to one another. The Court argued that disasters and relevant country of origin information (COI) were not (adequately) taken into account in the assessment relating to subsidiary protection (e.g. drought in Somalia and the poor supply situation; Pakistan flood disaster of 2010). According to the Supreme Administrative Court the return to the country of origin can constitute a violation of Article 3 ECHR if the person affected does not have a livelihood there, i.e. the basic needs of human existence of the particular individual person cannot be met. In this context the impacts of disasters may play a role. Still, the mere reliance on COI reporting a drought does not suffice. Based on this jurisprudence, the Appellate Court in the asylum procedure has found that (impacts of) disasters – such as recurring periods of drought with hunger crises, food insecurity, flooding, locust plague, and earthquakes – are elements to take into consideration when assessing the eligibility for subsidiary protection. Conversely, Austrian courts usually argue that disaster-related harm would not qualify as persecution and lack a connection to a persecution ground. In addition, humanitarian protection under Section 55 Austrian Asylum Act has never been granted in the context of disasters.
No Protection Statuses and Restrictive Interpretation: The Case of Sweden
In 1996, the Swedish government proposed providing protection to people who, despite not meeting the requirements for international protection, were still in need of protection due to environmental degradation and disasters. In its Proposition 1996/97:25, the Swedish Migration Policy in Global Perspective presented a draft legal provision to protect people who were unable to return to their country of origin because of an environmental disaster. The provision was incorporated into the Aliens Act (Utlänningslagen), entering into force in 1997. However, a review of judicial decisions found that the provision had been invoked in numerous cases in the context of disasters, but none of the claimants fulfilled the very narrow eligibility requirements (Scott and Garner). Moreover, judicial authorities frequently failed to carefully consider claims relating to disasters, even when the provision was expressly invoked by the claimant. Individual assessments of specific country of origin information were almost never carried out, and decisions frequently lacked reasoning to support the conclusions reached. Acknowledging the non-implementation of the provision and concerned to harmonize its asylum system to the EU’s, the parliament rescinded the provision in 2021 as part of a larger revision of Swedish immigration law. Refugee status has not been granted in this context, and only one person has been granted subsidiary protection in a case concerning the risk of gender-based violence in the aftermath of the Haitian earthquake in 2010.
Already in 2015, the Nansen Initiative’s Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change promoted regional consultative processes to further enhance the understanding of cross-border disasters and related displacement. Initiating such consultations in Europe would definitely contribute, on the one hand, to assess the feasibility of leveraging (aspects of) existing national protection measures to people displaced in the context of disasters at the EU level. On the other hand, it would help identifying additional human rights-based practices potentially available in other Member States beyond Italy, Austria and Sweden. Further research on these topics is therefore needed in order to map available avenues to protection due to disaster displacement across the EU. This, in turn, would strengthen current EU-driven climate responses more comprehensively. The fact that this year marks the EU Presidency of the Platform on Disaster Displacement, one of the most important State-led initiatives with the aim to advance protection of disaster displaced persons worldwide, makes the need for deep reflection upon the issue all the more relevant.