The Legal Status and Protection of Climate Refugees in the EU

Avrupa Birliği’nde İklim Mültecilerinin Hukuki Statüsü ve Korunması

Mustafa T. KARAYİĞİT, Merve KILIÇ

In the near future, climate change will challenge the tackling mechanism of many countries and overwhelm some by aggravating current difficulties such as extreme weather events, food safety, shortage of water, etc., while putting fundamental human rights in a jeopardy. There is growing evidence that climate change-related occurrences are specifically affecting the underdeveloped countries and the EU Member States will be the lowest affected. Even though taking refuge in another country is a last resort solution to dealing with the effects of climate change, human flows to the EU are going to be inevitable if no measures will be taken. In accordance with its underlying values, the EU has a crucial role in reaching a consensus on finding a solution not only to this problem, but also to recognition and legal protection of climate refugees. The article addresses the need to recognition and protection of climate refugees and actions to be taken by the EU to reduce negative consequences of climate change.

Climate Change, Climate Refugees, Legal Status, Legal Protection.

Yakın gelecekte iklim değişikliği temel insan haklarını tehlikeye atmak yanında, birçok ülkenin doğuracağı sorunlarla başa çıkma mekanizmasına tehdit oluşturacak ve aşırı hava olayları, gıda güvenliği ve su kıtlığı gibi mevcut zorlukları ağırlaştırarak bazı ülkelere galebe çalacaktır. İklim değişikliğine bağlı olayların özellikle az gelişmiş ülkeleri etkilediğine ve AB Üye Devletlerinin en az etkilenen ülkeler olduğuna dair artan kanıtlar bulunmaktadır. Başka bir ülkeye sığınmak, iklim değişikliğinin etkileriyle başa çıkmak için son çare olsa dahi, herhangi bir önlem alınmadığı takdirde AB’ye insan akışı kaçınılmaz olacaktır. Temel değerlerine uygun olarak, AB sadece bu soruna değil, aynı zamanda iklim mültecilerinin tanınması ve yasal olarak korunmasına ilişkin bir çözüm üretilmesi noktasında uzlaşmaya varılmasında çok önemli bir role sahiptir. Makale, iklim mültecilerinin tanınması ve korunmasına yönelik ihtiyaca ve iklim değişikliğinin olumsuz sonuçlarının azaltılması için AB tarafından atılabilecek adımlara değinmektedir.

İklim Değişikliği, İklim Mültecileri, Hukuki Statü, Hukuki Koruma.

INTRODUCTION

The Climate Vulnerability Index¹ rated 193 countries on their perceived risk from climate change by assessing the physical impacts of climate change, the vulnerability of citizens and the level of adaptability of the countries. While twenty-seven European countries are classified as low-risk, the Sub-Saharan Africa region is home to ten of the most vulnerable countries.² The most vulnerable countries have not been among the countries that created the challenges caused by climate change as the average metric tons of CO2 produced in 2014 both by European (6.4) and Sub-Saharan African (0.8) countries³ show, but the European countries, which breach the no-harm principle of international environmental law, since climate change-induced effects have been aggravated mainly by their actions, as being industrialised countries of the North, are the most responsible for the global warming and climate change.⁴ Furthermore, the EU positions in a region having a growing climate change-induced immigration propensity and in the Mediterranean region as being a bridge for migration between Sub-Saharan Africa, North Africa and the Middle East.⁵ Even though the ongoing refugee crisis in the EU demonstrates the consequences of their failure and unpreparedness,⁶ the EU Member States are responsible for taking leadership in global efforts to mitigate climate change, minimise the damage caused to the other regions/and countries of the earth, strengthen those countries’ economies to prevent forced migration due to worsening their climate change-induced conditions and inevitably providing international cooperation for ensuring the human rights protection of displaced individuals and legal protection for those who ultimately manage, even clandestinely, to enter into the EU borders.⁷

Though there are already some worth-mentioning attempts in the policy field,⁸ as the Parliamentary Assembly of Council of Europe (PACE) reiterated, the lack of legal status primarily should be considered a barrier to developing certain policies to protect those individuals.⁹ The article in that regard addresses the legal status and protection of climate-induced displaced individuals in the EU. Its focus is not the preventive policies in cooperation with the countries of origin or internally climate-induced displaced individuals within their countries but mainly the recognition and provision of that status and legal protection especially in the EU for climate refugees fleeing their countries in order to draw attention to lacuna in their recognition and legal protection framework at the international, regional and national levels.

I. EU LEGAL FRAMEWORK FOR THE RECOGNITION AND LEGAL PROTECTION OF CLIMATE REFUGEES

With regard to initiatives taken in the EU, the EU’s concern on climate change-induced migration was initiated by the European Parliament’s mention about climate refugees in an official document in 1999.¹⁰ Since then, it has organised several seminars, workshops and hearings on this subject with the aim of drawing the attention of the EU and international institutions to climate change-induced migration and the lack of legal recognition with a human rights-based approach.¹¹

The European Commission also addressed the issue in 2007 through sponsoring the Project entitled “Environmental Change and Forced Migration Scenarios (EACH-FOR)” which aims to encourage Europe on its policies regarding forced migration scenarios significantly raised by climate change.¹² The paper entitled “Climate Change and International Security” and drafted for the European Council by the High Representative and the European Commission in 2008, defined climate change-induced migratory pressure as a threat to Europe and so emphasised the importance of the EU’s leadership in the international arena to promote security by developing its migration policy.¹³ In a White Paper drafted in 2009, having provided a policy context to minimise the EU’s vulnerability to climate change-induced effects, the Commission described the EU as a facilitator of national-level actions specifically for global problems and underlined that most of the measures can only be initiated by the Member States.¹⁴

The Commission also presented and analysed the various policies as a comprehensive answer to the call of the European Council in 2009 through the Stockholm Programme¹⁵ on carrying out the exploration of climate change-induced cross border migration and its impact on the EU.¹⁶ In 2011, it also comprehensively analysed protection gaps, policy responses and the EU’s current legislative and policy framework. Having pointed out different protection-related actions required for temporary, permanent, internal or external migration types, the study suggested that the EU can take the lead in the field of international law, use resettlement as an option and inspire others by amending Article 15(c) of the Qualification Directive and by using the Temporary Protection Directive during a mass influx.¹⁷ The Commission recently in a proposal for a regulation in 2020 mentioned the long-term EU climate-neutrality objective, achieving net-zero greenhouse gas emissions by 2050 and clarified that there is not any firm policy determined on climate change-induced migration and climate refugees.¹⁸

Having underlined in 2011 that as a global threat climate change carries significant implications related to access to basic needs such as food, water, etc. that creates tensions for migration, the Council called the EU for immediate action to minimise these risks.¹⁹ In 2013, the Council also gave a call to the EU and the Member States to address and adopt policies in regard of climate change-induced migration, particularly in the light of the development and humanitarian assistance.²⁰

It is clear that the EU cares about climate change by considering it as an initiator of various types of crises such as environmental, security-related and humanitarian and has taken concrete steps over a decade. It even became a party to the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and Paris Agreement as the only regional organisation.²¹ The EU’s contributions to the Global Compact for Migration and the Sendai Framework for Disaster Risk Reduction 2015-2030 are also significant. However, the EU has no comprehensive and solid policies and legislative framework yet for climate change-induced migration, but focused on the ad hoc and short term solutions.

It is needed to discover the potential protection mechanism for climate refugees that exist in the EU territory and finding a way to fill the legal and protection gap. The protection is related to facilitating an environment that the asylum seekers will enjoy their basic human rights when waiting for a durable solution to the inhuman or degrading treatment or other types of dangers that happened or could have happen in the country of origin.

As regards the EU legal framework, Articles 2 and 21 of the Treaty on European Union (TEU) declare that the EU is built on respecting human rights and whose external relations should be guided by that principle universally and indivisibly. Article 3(5) of the TEU also reminds the EU of its role and responsibility to protect human rights worldwide. Therefore, the EU must abide by its role and responsibilities in order to respect and protect the human rights of climate refugees. The Charter of the Fundamental Rights of the European Union (the Charter) provides protection regarding the right to healthcare in Article 35 and the right to a healthy environment in Article 37.

The European Convention on Human Rights (the ECHR) and the European Court of Human Rights (the ECtHR) case law have a special spot in EU human rights law. According to Article 6(3) of the TEU, “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.” Also in the case that the EU manages to access to the ECHR under the obligation of Article 6(2) of the TEU, the Convention shall be binding as an agreement concluded by the EU itself and form an integral part of EU law.²² Furthermore, the CJEU also held that fundamental rights form an integral part of the general principles of EU law and in safeguarding these rights, the Court is bound to draw inspiration not only from constitutional traditions common to the Member States, but also from international treaties, as the ECHR, for the protection of human rights concluded by the Member States.²³ Lastly, under Article 52 of the Charter, the meaning and scope of the rights enshrined in the Charter shall be the same as the corresponding rights laid down by the ECHR. In that respect, there are several articles in the ECHR that can be interpreted as providing protection for asylum seekers and so might provide the same level of protection for climate refugees. For instance, the principle of non-refoulment applied in the cases relevant to Article 2 (right to life)²⁴ and Article 3 (prohibition of torture, inhuman or degrading treatment or punishment)²⁵ can help in filling some protection gap in the legal protection of climate refugees. Also, according to Article 4 of Fourth Protocol to the ECHR, States cannot expel those individuals collectively.

There is however no distinct and specific EU act applicable to climate refugees. Since the primary components of the postwar global refugee protection regime, established by the Geneva Convention and 1967 Protocol, have been incorporated into the EU’s asylum policy and EU human rights law under Article 78 of the Treaty on the Functioning of the European Union (the TFEU),²⁶ not only the international framework of refugee protection, but also current asylum policy and EU human rights law stay behind the global climate-induced necessities.

There are two important directives framing the status and legal protection for asylum seekers in the EU. First, Qualification Directive 2011/95/EU sets provisions for applicants to apply for refugee status or subsidiary protection and specifies the rights granted to applicants of such status, while encouraging the Member States to establish or maintain more favourable conditions than those stipulated in its provisions.²⁷ The scope of the Qualification Directive is limited to individuals in need of international protection, which excludes climate refugees in general, unless they need protection against conflicts triggered by climate change-induced disasters, since it is expressly based on the 1951 Geneva Convention outdated as to climate change concerns. The Commission already proposed in 2016 the Qualification Regulation by changing the type of the act for the purpose of avoiding breaches made by the Member States on the transposition and providing the same degree protection across the EU.²⁸ The Commission, on a New Pact on Migration and Asylum in September 2020, reiterated that proposal and made five new proposals for adopting new regulations for improving EU’s legislative framework on migration and asylum.²⁹

Second, Temporary Protection Directive 2001/55/EC³⁰ lays down a unique mechanism that allows for immediate and temporary protection for internationally displaced populations, being unable to return to their country of origin, to be used exceptionally and temporarily when there is a risk that the international protection mechanism will struggle to cope with the sudden massive influx merely.³¹ In light of Article 2 (ii) of Temporary Protection Directive, displacement occurred by climate change-induced disasters can be considered as a serious risk or systematic or generalised violations of human rights,³² even though this protection mechanism is simply non-functional and has never been used due to requiring a Council decision with a qualified majority.³³ Moreover, to include mass influx of climate refugees within the scope of the Temporary Protection Directive was even absent in the comprehension of the Commission in 2015-2016s.³⁴ Furthermore, this directive focuses on the return and can only be benefited from this status for one year (extended by up to two years) which limits the protection for the more disastrous situations. Consequently, in a New Pact on Migration and Asylum in September 2020, the Commission proposed that this Directive must be cancelled since it has procedural inefficiency and could not answer the current needs.³⁵ Briefly, that Directive is appropriate neither for the determination of individual status, nor for durable situations, nor for refugees fleeing slow-onset climate-induced degradation in the country of origin. It could be argued that it does not have a future in the EU asylum system let alone being a useful tool for protecting climate refugees.

Within the context of the EU Migration and Asylum Policy, managing the possible climate change-induced migratory flows to the EU in the near future continues to invoke legal protection concerns with regard to the status of climate refugees as asylum seekers. Given the drawbacks on current types of protection, the implementation of the existing law by the Member States and the EU’s stance on the asylum policies and procedures should be noticed.

The Member States can decide who can enter and stay in their territories and who should return to their countries, though this power must be exercised in accordance with EU law.³⁶ However, the EU’s asylum law is powerful on theory, but ineffective on distribution, since the 1951 Geneva Convention and its 1967 Additional Protocol only necessitate the Member States to examine applications of asylum, whilst allowing them to decide on granting with the status in light of their perception of acknowledgments of required criteria for refugee status at the time.³⁷ In practice, management of the assessment procedures allows the asylum policy to be adjusted with the complexity of economic and diplomatic interests, as a result, the numbers and categories of asylum seekers permitted to enter their territories are significantly controlled primarily by the Member States whose interests on protection from massive migration flow prevail over basic human rights of individuals.³⁸ In other words, the right to asylum is intertwined with the discretion of the Member States during the assessment procedure, the fact of which paves the way for restricting people’s movement on cross border.

The recent political instability of the Middle East, specifically the unrest in Syria, Iraq and Libya, resulted in a massive increase in asylum applications in the EU, which projected the unwillingness of Member States to welcome refugees and the prior humanitarian asylum policy has thus turned into security-focused one. The disputes among the Member States have also risen as well as a grown lack of cooperation within the EU to the point that certain Member States have failed to fulfil their responsibilities under the EU legislative framework.³⁹

Moreover, under the Dublin Regulation the applicant’s country of entry is responsible as a rule for examining asylum applications.⁴⁰ The existing migratory routes indicate that the responsibility of coping with the massive amount of asylum applications can only be tackled to a considerable extent by the Member States bordering the Mediterranean (Greece, Malta, Italy, and Spain) the fact of which is contradictory to the principle of solidarity.⁴¹

Although the resettlement procedure can be a permanent solution for asylum seekers by enabling asylum seekers to arrive in Europe through legal and safer ways to protect them from resorting to illegal trafficking channels and endangering their lives on risky unconventional routes, only a handful of Member States consider resettlement as an option. The Member States’ unwillingness and weak efforts to participate can be seen explicitly at the low number of resettled individuals.⁴² In addition, the fat that the priorities of the UNHCR limit the scope of resettlement to almost solely for vulnerable groups noticeably by age, gender and disability within the refugees⁴³ makes resettlement a solution for all problematic. The EU’s current asylum policies could therefore pose another burden on climate refugees since it is already difficult to seek asylum for the individuals that could fit the “standard” refugee status.

For the foregoing reasons, to be able to seek asylum in dignity, in addition to a clear legal framework and policies the change in the stance of Member States is also needed. However, as the latest proposals of the Commission showed, even though the EU is aware of the flaws, it still solely wants as a fortress to protect itself and its Member States rather than the individuals who need effective human rights protection. The main attitude is controlling migration and avoiding asylum seekers, instead of respecting the human rights of the displaced individuals and providing them safer and controlled legal channels into the EU. Although the border countries did not abide by EU law, the EU recently focuses on protecting them by removing Dublin Regulation,⁴⁴ proposing new regulations⁴⁵ and offering money to the other States for the relocation of asylum seekers as if it is a transactional matter.⁴⁶

II. ACTIONS TO BE TAKEN?

In the legal literature, various suggestions have been made as to the legal status and protection of climate refugees. At the regional level, in the EU suggestions were around the amendment of Article 15(c) of the Qualification Directive by including the environmental disasters, using the Temporary Protection Directive during a massive influx and considering resettlement as an option.⁴⁷ In the Council of Europe, a Framework Convention for the Recognition of Status and Rights of Environmental Migrants and initiating an additional protocol to the ECHR to include the right to a healthy and safe environment for climate refugees were suggested.⁴⁸

At the international level, amending the 1951 Geneva Convention relating to the Status of Refugees, 1967 Protocol relating to the Status of Refugees and correspondingly the mandate of the United Nations High Commissioner for Refugees, as the primary agency in the UN for the welfare and international legal protection of refugees, to encompass climate change as persecution by expanding the ambit of its subjects regarding the protection of climate refugees was put forward.⁴⁹ An international convention on climate refugees was also set forth.⁵⁰

There are significant actions the EU can take as a powerful actor in the international, regional and national arenas. The EU has a role and responsibility to protect human rights worldwide since human rights standards are binding for the EU itself and its Member States.⁵¹ Human rights principles are the core values of the EU. The Treaties declare that the EU is built on respecting human rights and its external relations should be guided by that principle universally and indivisibly. Article 21(2) of the TEU stipulated that the EU shall define and pursue its common policies and actions with a high degree of cooperation in all fields of international relations in order to consolidate and support human rights and assist populations, countries and regions confronting natural or man-made disasters. According to Article 4 of the TFEU, the EU and the Member States can use their shared competences if exclusive competence does not arise in creating legal instruments (e.g. an international agreement) under Article 3(2) of the TFEU for climate change.⁵²

An individual could only be guaranteed legal protection with a legal provision providing for an individual right by enabling that the subject matter is therefore covered by law.⁵³ Without an adequate definition under international law within the consideration of the common responsibility of the international community such refugees remain almost invisible not only in the international system,⁵⁴ but also in the EU legal order. In that respect, in the EU, the concepts of recognition and legal protection should mean using the legal tools in the sphere of EU law which stipulate the obligations of the EU institutions and the Member States and correspondingly the rights of asylum seekers.⁵⁵