10.6092/issn.2531-6133/18057
This article aims to trace the recent judicial trajectories in the promotion and recognition of environmental migration. It will first show the general background in which the phenomenon is placed, thus underlying its main characteristics and problems. Subsequently, it will offer an overview of some noteworthy examples of the so-called “climate change litigation”. Indeed, notwithstanding the lack of binding instruments and the inapplicability or inadequacy of the existing legal instruments for the protection of environmental migrants, noteworthy examples of increasing awareness about the relationship between environmental degradation and human rights can be found in several cases decided by international human rights judicial or quasi-judicial bodies. In particular, two recent decisions of the United Nations Human Rights Committee (U.N.H.R.C.) will be assessed. The article will also assess the increasing sensibility of the European Court of Human Rights (E.Ct.H.R.) in deciding environmental cases through a human-rights-based approach. By moving from the supranational context to the national one, the paper will focus on two recent decisions adopted by the French Bordeaux Administrative Court and the Italian Court of Cassation. Indeed, they both represent relevant examples of the role played by national courts in broadening the interpretation and application of the existing instruments of protection for environmental migrants. The analysis of the mentioned decisions will then be framed in the wider context of the legal order of the European Union (E.U.), highlighting how E.U. instruments of secondary law at disposal do not appear adequate for guaranteeing a sort of protection for environmental migrants.
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2531-6133
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https://creativecommons.org/licenses/by/4.0
University of Bologna Law Review
Human Rights
Judicial Trajectories in the Recognition of Environmental Migrants
Text.Serial.Journal
https://bolognalawreview.unibo.it/
8
Conference Papers
2023-09-18
2023-09-18
2023-05-08
2023-09-19
187-216
UBLR
Giulia Dal Ben
2023/09/18
10.6092/issn.2531-6133/18057
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Judicial Trajectories in the Recognition of Environmental Migrants
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8
llVOLUME 8                                 llISSUE 1                     CONFERENCE PAPERS



                          UNIVERSITY OF BOLOGNA LAW REVIEW
                          https://doi.org/10.6092/issn.2531‐6133/18057

            Received: 13 Oct. 2022 | Accepted: 30 Nov. 2022 | Published: 18 Sept. 2023

                                                A

       Judicial Trajectories in the Recognition of Environmental
                                          Migrants


                                       GIULIA DAL BEN*
*Giulia Dal Ben obtained a master’s degree in law at the University of Bologna (Italy) and an MA
in International Public Affairs at the School of Government of the University Luiss Guido Carli
(Italy). She is currently a Ph.D. candidate in European Union Law at the University of Bologna
(Italy). Her Ph.D. research concentrates on the protection of environmental migrants within the
European Union’s legal framework with a specific focus on the concept of “vulnerability”. Her
research interests include the EU disaster response, human rights, and environmental law.

 @ giulia.dalben2@unibo.it
  ID
       0009-0001-8397-944X


                                            ABSTRACT

This article aims to trace the recent judicial trajectories in the promotion and recognition of
environmental migration. It will first show the general background in which the phenomenon is
placed, thus underlying its main characteristics and problems. Subsequently, it will offer an
overview of some noteworthy examples of the so-called “climate change litigation”. Indeed,
notwithstanding the lack of binding instruments and the inapplicability or inadequacy of the
existing legal instruments for the protection of environmental migrants, noteworthy examples of
increasing awareness about the relationship between environmental degradation and human
rights can be found in several cases decided by international human rights judicial or
quasi-judicial bodies. In particular, two recent decisions of the United Nations Human Rights
Committee (U.N.H.R.C.) will be assessed. The article will also assess the increasing sensibility of
the European Court of Human Rights (E.Ct.H.R.) in deciding environmental cases through a
human-rights-based approach. By moving from the supranational context to the national one,
the paper will focus on two recent decisions adopted by the French Bordeaux Administrative
Court and the Italian Court of Cassation. Indeed, they both represent relevant examples of the
role played by national courts in broadening the interpretation and application of the existing
instruments of protection for environmental migrants. The analysis of the mentioned decisions
will then be framed in the wider context of the legal order of the European Union (E.U.),
highlighting how E.U. instruments of secondary law at disposal do not appear adequate for
guaranteeing a sort of protection for environmental migrants.




                                               187
         JUDICIAL TRAJECTORIES IN THE RECOGNITION OF ENVIRONMENTAL MIGRANTS


                                               KEYWORDS
            Environmental migration; European Union; Migration; Jurisprudence; Human Rights


                                          EDITORIAL NOTE
     This contribution was presented during the “EDELNet+ PhD Conference on Climate Change”,
    Human Rights and Public Control: Legal Scholarship in the Face of Current Global Challenges
    that took place online on 13 October 2022 and was led by Prof. Giacomo di Federico, Dr. Juan J.
             Garcia Blesa and Dr. Michal Stambulski (http://graduateschool.edelnet.eu).
      This conference paper was subject to a single-blind peer review, in which the anonymity
                                   of the reviewer was guaranteed.


                                         TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    188
1. Recent Judicial Debate on Environmental Migration at the International Level . . . . . . .           197
2. Beyond the International Context: National Courts of E.U. Member States and
   Environmental Migration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      202
         2.1. Right to Health, Non-refoulement and High Level of Air Pollution: The Decision
            of the French Bordeaux Court of Appeal . . . . . . . . . . . . . . . . . . . . . . .        202
         2.2. Environmental Degradation and Non-refoulement: The Decision of the Italian
            Supreme Court of Cassation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     206
3. Spotlight on the European Union Legal Framework . . . . . . . . . . . . . . . . . . . . . .          210
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   215




      INTRODUCTION

With gradually worsening climate patterns and severe weather events, the climate crisis
is remodeling our world. Climate change is described by variations in average weather
conditions, and includes modifications in temperature, precipitation patterns, the
frequency and severity of certain weather events.1 Indeed, the increasing rise of global
temperatures has contributed to more frequent and extreme weather hazards around
the world,2 including sudden-onset events, such as heat waves, droughts, heavy
precipitation, floods, and storms, along with slow-onset events, such as the continuous
sea-level rise, the ocean warming and acidification, and glacial loss.3 When such severe
1
  See ALEXA JAY ET AL., FOURTH NATIONAL CLIMATE ASSESSMENT, VOLUME II: IMPACTS, RISK, AND ADAPTATION IN THE
  UNITED STATES 33 (Reidmiller et al. eds, 2018).
2
  According to Copernicus 2021, globally, the years 2016, 2019 and 2020 have been the warmest on record,
  and 2011–2020, the warmest decade ever. See Copernicus Press Release, Copernicus: 2020 Warmest Year on
  Record for Europe; globally, 2020 Ties with 2016 for Warmest Year Recorded (Jan. 8, 2020).
3
  World Meteorological Organisation [WMO], State of the Global Climate 2020, WMO-No.1264 (2021)
  https://public.wmo.int/en/our-mandate/climate/wmo-statement-state-of-global-           [last visited    6
  December 2022].


                                                   188
2023]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                         [Vol. 8:1


events are merged with social, political, and economic vulnerabilities, environmental
degradation and climate change can also produce adverse effects on the availability of
primary resources, such as food and water in rural, coastal, and urban systems across
regions.4
Thus, climate change and environmental degradation are expected to increase the
frequency and intensity of such hazards, bringing further damage and conflicts,5
especially to vulnerable areas with high dependence on natural resources and low
capacity to adapt.6 Indeed, many countries are witnessing shifts in population
distribution and alterations in the human mobility dynamics,7 eventually leading to a
large-scale human movement across continents or trapping people without resources to
flee, thus preventing them from escaping their countries of origin due to the adverse
effects of climate change and environmental degradation.8
           In particular, statistics have shown the increasing role of extreme sudden
weather-related events in changing mobility patterns and emphasizing pre-existing
vulnerabilities.9        After all, such scenarios are consistent with the Sixth Assessment
Report of the Intergovernmental Panel on Climate Change [hereinafter I.P.C.C.]10
registering that, since 2008, an annual average of over twenty million people have been
internally displaced by weather-related extreme events, with storms and floods being
the most common. Only in 2021, according to the 2022 Internal Displacement Monitoring
Centre report, thirty-eight million people were displaced and, among them, 23.7 million
were displaced due to disasters in 137 countries and territories.11 In addition, the World
Bank’s Groundswell Report recognized that climate change and environmental
degradation are potent drivers of migration, and they could force 216 million people
across six world regions to move within their countries by 2050.12




4
   VIVIANE CLEMENT ET AL., GROUNDSWELL PART 2: ACTING ON INTERNATIONAL CLIMATE MIGRATION 304 (The World
   bank, 2021), https://openknowledge.worldbank.org/handle/10986/36248.
 5
    Id.
 6
   See Jonathan S. Blake et al., Addressing Climate Migration. A Review of National Policy Approaches, RAND.
   Corporation (2021), https://www.rand.org/pubs/perspectives/PEA1085-1.html.
 7
   See CLEMENT ET AL., supra note 4.
 8
   See Alex Randall (@AlexRandall), LINKEDIN (July 18, 2022), https://www.linkedin.com/pulse/caught-trap-
   why-climate-change-might-actually-lead-some-alex-randall/ [last visited 6 December 2022].
 9
   See CLEMENT ET AL., supra note 4, at 230.
10
   H.-O. Pötner et al., Climate Change 2022: Impacts, Adaptation and Vulnerability, Working Group II Contribution to the
   Sixth Assessment Report of the Intergovernmental Panel on Climate Change 52 (IPCC Working Group II Contribution,
   2022).
11
   International Displacement Monitoring Centre [IDMC], Global Report on Internal Displacement [hereinafter
   GRID], 11 (2022).
12
   See CLEMENT ET AL, supra note 4.


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          JUDICIAL TRAJECTORIES IN THE RECOGNITION OF ENVIRONMENTAL MIGRANTS


In light of the increasing alarming data, the nexus between environmental degradation
and migration has been acquiring a growing space in political and societal debates.13 The
urgency to provide a definition was particularly felt by the International Organization
for Migration [hereinafter I.O.M.],14 which has been the actor at the forefront in the
attempt to define “environmental migrants”.15 The 2007 Council Session defined the
latter as “persons or groups of persons who, for reasons of sudden or progressive
changes in the environment that adversely affect their lives or living conditions, are
obliged to leave their habitual homes, or choose to do so, either temporarily or
permanently, and who move either within their territory or abroad”.16 This definition
by being conceptualized in this manner acknowledges that environmental migrants do

13
   In particular, on the different phenomena that may cause environmental migration see Diane C. Bates,
   Environmental Refugees? Classifying Human Migrations Caused by Environmental Change, in 23/5) POPULATION &
   ENV’T 456, 465 (2002); see Frank Biermann & Ingrid Boas, Preparing for a Warmer World: Towards a Global
   Governance System to Protect Climate Refugees, in GLOB. ENV’T POL., 60 (2010); see also Bruno Venditto, Il futuro
   del Mediterraneo. Studio preliminare sui rifugiati ambientali, in IL MEDITERRANEO: UNO STUDIO E UNA PASSIONE.
   SCRITTI IN ONORE DI LUIGI DI COMITE 251-269 (M. A. Valleri et al.eds. 2012). See Alison Heslin et al., Displacement
   and Resettlement: Understanding the Role of Climate Change in Contemporary Migration, in LOSS AND DAMAGE FROM
   CLIMATE CHANGE: CONCEPTS, METHODS AND POLICY OPTIONS 237 (R. Mechler, et al., eds, 2019).
14
   I.O.M.’s defining effort - as well as the above-mentioned inclusion of the environmental causes of migration
   in soft law documents by other international actors - is placed in a global backdrop in which the issues
   of the protection of the environment, climate change and sustainable development have fully moved to
   the center of the political debates. Indeed, it is possible to cite the above-mentioned United Nations
   Framework Convention on Climate Change [hereinafter, U.N.F.C.C.C.] and its Paris Climate Conferences
   [hereinafter, C.O.P.s], the U.N. General Assembly Resolution stating the right to a healthy environment, the
   Sendai Framework for Disaster Risk Reduction 2015-2030 under the U.N. Office for Disaster Risk Reduction
   (U.N.D.R.R.), the 2030 Sustainable Agenda, as well as the E.U. Green Deal. It is due to note that also the United
   Nations University’s Institute for Environment and Human Security in 2011 tried to define “environmental
   migrants”. In particular, it distinguished among “environmental emergency migrants”, “environmentally
   forced migrants” and “environmentally motivated migrants”. “Environmental emergency migrants” are
   “people who have to flee because of the swiftness of an environmental event and who have to take refuge
   to save their lives”. “Environmentally forced migrants”, on the contrary, are “who have to leave in order to
   avoid the worst of environmental deterioration. The urgency for flight is less than for the environmental
   emergency migrant since the pace with which the environment is changing and or deteriorating is slower”.
   Whereas “environmentally forced migrants” are those “who may leave a steadily deteriorating environment
   in order to preempt the worst. Here, there is no emergency nor is it a last resort action to move, but rather
   it is a situation in which individuals or communities who foresee a continuously deteriorating environment
   may decide to move in order to avoid further deterioration of their livelihoods” (for a detailed analysis also
   on the evolving legal scholars’ attempts to draw a definition of this phenomenon; see Fabrice G. Renaud et
   al., A Decision Framework for Environmentally Induced Migration, in INT’L MIGRATION, 5, 14 (2011); Resolution on
   Women, Gender Equality and Climate Justice, EUR. PARL. DOC. PV 15/01 (2018), para. 20 called:
                 on the Commission and the Member States to contribute to the Global Compact
                 for Safe, Orderly and Regular Migration, with a view to safeguarding climate
                 justice by acknowledging climate change as a driver of migration, providing human
                 rights-based input, and mainstreaming gender equality throughout the compact,
                 consistently with the needs of climate- displaced people.
15
   On a methodological level, it is due to note that in the present paper the terms “environmental migrants”,
   “environmental displaced persons” or “environmental induced displacement” will be used within the same
   meaning. See Geddes & William Somerville, Migration, and environmental change in international governance: the
   case of the European Union, in 30 ENV’T AND PLANNING C, 1015, 1018 (2012).
16
   International Organization for Migration [IOM], Discussion note: migration and the environment, 1-2, Doc.
   MC/INF/288 ( November 1, 2007).


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2023]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                      [Vol. 8:1


not only move due to climate change alone, but also due to broader environmental
reasons, such as sudden and slow-onset events; that movement of people could occur
both within and outside national borders; that migration could be both short-term and
long-term and, finally, that such movements could be either forced or voluntarily.17
           Over time, harsh criticisms have not spared this definition, mainly underlining
its broad character and the difficulty to disentangle the effects of environmental change
from other drivers of migration. Indeed, environmental migrations have a so-called
“multi-causal nature”,18 due to the difficulty, and in some cases the impossibility, in
reconstructing a cause-and-effect relationship between a particular environmental
event and the specific movement of individuals.19 It is believed that the environmental
conditions act as amplifiers, exacerbating already existing vulnerabilities,20 in a way that
those who experience the most adverse effects of climate change and environmental
degradation already tend to be in a state of poverty, sickness, discrimination.21 In this
sense, climate change would interact with other overlapping non-environmental factors,
such as economic, social, and political factors,22 which evolve and change over time.
           The lack of a generally accepted definition of environmental migrants, which
results in the use of different (and sometimes not adequate) expressions (e.g.,
environmental or climate migrant, environmental or climate refugee, eco-migrant), 23 inevitably
hinders the assignment of an actual legal status to those moving due to environmental
reasons. Actually, some attempts to raise awareness of this gap have been made by
certain international actors, such as the U.N.F.C.C.C. Secretariat, the I.O.M. and the U.N.
High Commissioner for Refugees [hereinafter U.N.H.C.R.]. They have firstly begun to
address the causes and consequences of environmental migration, thus raising the
phenomenon as an emerging global priority through the development of frameworks,

17
   On the identified characteristics of environmental migration; see Renaud et al., supra note 14.
18
   See Blake et al., supra note 6.
19
   See Jane McAdam, Managing Displacement in the Era of Climate Change, GEO. J. INT’L AFF., Nov. 2019, at 1.
20
   See JANE MCADAM, CLIMATE CHANGE, FORCED MIGRATION AND INTERNATIONAL LAW 5 (2012).
21
   See Etienne Piguet, Climate Change and Forced Migration (United Nations High Commissioner for Refugees,
   Research Paper No. 153, 2008), http://www.unhcr.org/research/working/47a316182/climate-change-
   forced-migration-etienne-piguet.html; see VALERIO CALZOLAIO, ECOPROFUGHI. MIGRAZIONI FORZATE DI IERI, DI
   OGGI, DI DOMANI (Nda Press, 2010).
22
   See Norman Myers, Environmental refugees: A Growing Phenomenon of the 21st century, in 357(1420) PHIL.
   TRANSACTIONS ROYAL SOC’Y B: BIOLOGICAL SCI., 609 (2002).
23
   Due to such complexity, the terminology used to define who moves because of climate or
   environmental changes is various: climate or environmental refugees, eco-migrants or climate-
   induced migration, environmental migration, or environmental displaced persons.                           See in
   particular id. see also Graeme Hugo et al., Migration, Development and Environment, in 35 Migration
   Research      Series,      42-61   (2008),    https://publications.iom.int/system/files/pdf/mrs_35_1.pdf.
   See Study on Climate Change and Migration. Legal and Policy Challenges and Responses to
   Environmentally Induced Migration, EUR. PARL. STUDY PE 655.591 (July, 2020),
   https://www.europarl.europa.eu/RegData/etudes/STUD/2020/655591/IPOL_STU(2020)655591_EN.pdf.


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         JUDICIAL TRAJECTORIES IN THE RECOGNITION OF ENVIRONMENTAL MIGRANTS


guidelines, and recommendations.24 Significantly, reference to environmental migration
can also be found in the 2010 Cancún Agreement on Adaptation to Climate Change,25
adopted by the Conference of the Parties to the U.N.F.C.C.C., which called for a
commitment by States to develop “measures to enhance understanding, coordination,
and cooperation” on the issue.26 More recently, the United Nations Global Compact for
Safe, Orderly and Regular Migration,27 drawing from the New York Declaration on
refugees and migrants,28 has explicitly acknowledged that climate change, natural
disasters, environmental degradation, and other environmental factors are drivers of
migration.29




24
   See, e.g., under the I.O.M., the creation in 2015 of the Migration, Environment and Climate Change Division
   which was intended to spearhead work on the subject of environmental migration. Such involvement can
   be seen in the participation of global processes, such as the Global Compact for Safe, Orderly and Regular
   Migration [hereinafter G.C.M.], U.N.F.C.C.C., United Nations Convention to Combat Desertification, Sendai
   Framework for Disaster Risk Reduction, 2030 Agenda for Sustainable Development and Global Forum on
   Migration and Development, as well as regional dialogues.
25
   See United Nations Framework Convention on Climate Change, ¶14 (f), Mar. 15, 2011, U.N. Doc
   FCCC/CP/2010/7/Add.1.
26
   The necessity to develop and implement a comprehensive approach to migration in the context of disasters,
   climate change and environmental degradation can be found also in the objectives of the 2030 U.N. Agenda
   on Sustainable Development, in the 2015 Paris Agreement on Climate Change, in the Sendai Framework for
   Disaster Risk Reduction and in the Nansen Agenda for the Protection of Cross-Border Displaced Persons in
   the Context of Disasters and Climate Change.
27
   As part of the General Assembly’s effort, the New York Declaration on Refugees and Migrants sets out
   a comprehensive refugee response framework and two global compacts (one on refugees and one on
   international migration). In particular, the 2018 G.C.M. is a non-binding intergovernmental agreement that
   defines the common pledges to tackle challenges and opportunities in international migrations. The issue of
   environmental migration is included under Objective 2, which looks at addressing root causes of migration
   in the context of natural disasters, climate change and environmental degradation, as well as Objective 5,
   which identifies ways to strengthen opportunities for regular migration for those impacted by slow-onset
   natural disasters. On the contrary, the Global Compact on Refugees [hereinafter G.C.R.] addresses in a less
   prominently way environmental displacement. More in detail, the topic of climate change and disaster are
   only mentioned within the G.C.R.
28
   See G.A. Res. 217 (III)A, New York Declaration on Refugees and Migrants (Sept. 19, 2016) [hereinafter New
   York Declaration]. For an analysis of the Declaration see Lisa Ruozzi, La Dichiarazione di New York sui rifugiati
   e migranti: verso un modello condiviso di gestione del fenomeno migratorio?, in 1 ORDINE INTERNAZIONALE E DIRITTI
   UMANI, 24 (2017). (It.).
29
   New York Declaration, supra note 27, at point 1 where it is stated that:
                 Since earliest times, humanity has been on the move. Some people move in search
                 of new economic opportunities and horizons. Others move to escape armed conflict,
                 poverty, food insecurity, persecution, terrorism, or human rights violations and
                 abuses. Still others do so in response to the adverse effects of climate change, natural
                 disasters (some of which may be linked to climate change), or other environmental
                 factors. Many move, indeed, for a combination of these reasons,
   but also point 9 where it is stated that:
                 Refugees and migrants in large movements often face a desperate ordeal. Many take
                 great risks, embarking on perilous journeys, which many may not survive. Some
                 feel compelled to employ the services of criminal groups, including smugglers, and
                 others may fall prey to such groups or become victims of trafficking. Even if they
                 reach their destination, they face an uncertain reception and a precarious future.


                                                        192
2023]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                      [Vol. 8:1


Despite the global commitment briefly presented above,30                                  the protection of
environmental migrants remains a grey area, for three main reasons.
           Firstly, the absence of precise data on the number of people moving for
environmental reasons from one State to another or within their country of origin
makes it difficult to assess the extent of environmental migrants protection or make
precise predictions.31
           Secondly, as mentioned before, it is difficult to define precisely environmental
migration,32 as it is also influenced by other non-environment factors. Apart from
evoking different images, the use of the terms refugee, migrant or displaced person, has
political and legal implications, accentuating or reducing the forced nature of the
movement and soliciting the responsibility of the countries of origin, transit and
destination.33
           Thirdly, there are no ad hoc binding instruments granting some kind of
protection to these people, while the existing instruments are inadequate. As a matter of
fact, even the attempts 34 to grant the refugee status under the 1951 Geneva Convention
relating to the Status of Refugees and its 1967 Protocol                     35   have proven ineffective.36
According to art. 1A(2) of the Geneva Convention,37 there are three main requirements
to obtain refugee status which are, however, the reasons for such ineffectiveness.


30
   See UNITED NATIONS ENVIRONMENTAL PROGRAMME,                       THE GLOBAL COMMITMENT 2022 (2022).
   https://ellenmacarthurfoundation.org/global-commitment-2022/overview.
31
   See Ilian Kelman, Imaginary Numbers of Climate Change Migrants?, 8(5) SOC. SCI., 131 (2019).
32
   See in particular W. Neil Adger et al., Human Security, in CLIMATE CHANGE 2014: IMPACTS, ADAPTATION, AND
   VULNERABILITY, PART A: GLOBAL AND SECTORAL ASPECTS, 768 (Christopher B. Field at al. eds., 2014); see also
   Ingrid Boas et al., Climate Migration Myths, 9 NAT. CLIMATE CHANGE, 901 (2019); Saleh Ahmed, Book Review: The
   Concept of Climate Migration: Advocacy and Its Prospects, 19 GLOB. ENV’T. POL. 139, 139-141 (2019).
33
   See Anna Brambilla & Michela Castiglione, Migrazioni Ambientali:                        Libertà di Circolazione
   vs.         Protezione?,     Cosmopolis Rivista di Filosofia e Teoria politica 1,                         (2019),
   https://www.cosmopolisonline.it/articolo.php?numero=XVI12019&id=3 [last visited 6 December 2022] (It.).
34
   See generally Bonnie Docherty & Tyler Giannini, Confronting a Rising Tide: A Proposal for a Convention on Climate
   Change Refugees, 33 HARV. ENV’T. L. REV., 349 (2009). See also James Morrissey, Rethinking the ‘Debate on
   Environmental Refugees’: From ‘Maximalists and Minimalists’ to ‘Proponents and Critics’, 19 J. POL. ECOLOGY 36,
   (2012). See BENOÎT MAYER, THE CONCEPT OF CLIMATE MIGRATION: ADVOCACY AND ITS PROSPECTS (2016).
35
   See U.N. Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150, (1954).
36
   On the inapplicability of the Geneva Convention to environmental migrants; see generally McAdam, supra
   note 20, at. 43; JANE MCADAM, CLIMATE CHANGE, FORCED MIGRATION, AND INTERNATIONAL LAW 43 (2012). Even
   the Office of the U.N.C.H.R. rejected the use of the term “refugee” in this context on grounds that the
   term “refugee” is a legal term and should be reserved for refugees protected under the 1951 Geneva
   Convention. See U.N. High Commissioner for Refugees (U.N.H.C.R.), Climate Change, Natural Disasters and
   Human Displacement: A U.N.H.C.R. Perspective (Oct. 23, 2008).
37
   See Geneva Convention, supra note 36, at art. 1A(2) of the Geneva Convention the
                term refugee shall apply to any person who: [. . .] (2) [. . .] 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.


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          JUDICIAL TRAJECTORIES IN THE RECOGNITION OF ENVIRONMENTAL MIGRANTS


Primarily, the Convention requires “a well-founded fear of being persecuted”38 for one of
the five reasons enlisted (the so-called persecution requirement), which hardly amounts
to climate change and environmental degradation.                                There is a reluctance39 in
characterizing “climate change” or the “environment” as agents of persecution.40
Traditionally, persecutory acts encompass serious violations of human rights, either
because of their intrinsic nature or because of their repetition,41 and the dolus specialis –
i.e., the special intention to hurt. In the case of environmental migration, since the
environment cannot be considered as a persecutor, there is no particular intent. In
addition, such fear of being persecuted is connected to a discriminatory element,42 thus
it must be individualized and proved. In other words, the five grounds of persecutions
are tied to personal characteristics,43 while the impacts of environmental degradation
are largely indiscriminate. Thus, an environmental migrant would have to prove that
something specific is exposing him or her to a real fear of persecution, but the mere
environmental or climatic event is not sufficient to apply for international protection.44




38
   At the international level, there is not universal definition of “well-founded fear of persecution”. See U.N.
   High Commissioner for Refugees (U.N.H.C.R.), Handbook on Procedures and Criteria for Determining Refugee Status
   and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of
   Refugees, at 9, 37, HCR/1P/4/ENG/REV. 4, (2d ed. 1992).
39
   See Catherine-Amélie Chassin, Dealing with International Vulnerability: European Law and Climate-Induced
   Migrants, in Francesca Ippolito & Sara Iglesias Sanchez, Protecting Vulnerable Groups 274.
40
   It is due to note that there are some legal scholars that argued in the opposite way. See generally Jessica B.
   Cooper, Environmental Refugees: Meeting the Requirements of the Refugee Definition, 6 N.Y.U. ENV’T L. J. 480, 480-
   676 (1998). Cristopher M. Kozoll, Poisoning the Well: Persecution, the Environmental, and Refugee Status, 15 COLO.
   J. INT’L ENV’T L. & POL’Y 271 (2004). See Hossein Ayazi & Elsadig Elsheikh, Climate Refugees: The Climate Crisis
   and Rights Denied (2019), https://escholarship.org/uc/item/58w8r30h [last visited 6 December 2022].
41
   As highlighted by McAdam, supra note 20, at 44, the act classified as “persecutory” can be also composed by
   a repetition of breaches: “[F]or example, an accumulation of breaches which, individually, would not be so
   severe but which together constitute a serious violation”. A similar approach can be found in the Council
   Directive 2011/95, of the European Parliament and of the Council of 13 December 2011 on standards for the
   qualification of third-country nationals or stateless persons as beneficiaries of international protection, for
   a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the
   protection granted (recast), 2011 O.J. (L 337/9), artt. 2 and 9.
42
   See McAdam, supra note 20, at 44.
43
   See Susanna Villani, Reflections on human rights law as suitable instrument of complementary
   protection applicable to environmental migration, 3 Diritto, Immigrazione e Cittadinanza 1, 5 (2021),
   https://www.dirittoimmigrazionecittadinanza.it/archivio-saggi-commenti/saggi/fascicolo-n-2-2021-
   2/824-reflections-on-human-rights-law-as-suitable-instrument-of-complementary-protection-applicable-
   to-environmental-migration/file (It.).
44
   Id.


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Furthermore, environmental and climatic events do not target a specific person or a
specific group.45 In this perspective, some authors have argued that the environmental
factor could be interpreted as an aggravating element in the event of conflicts.46 For
example, in the event of the government’s voluntary decision to not help specific ethnic
groups after a disaster. As a matter of fact, in the few occasions in which environmental
migrants have been considered as refugees, the environmental factor was connected to
one of the five grounds of persecution.
           Secondly, the definition only applies to people who have already crossed an
international border; thus, they are already outside the country of their nationality or of
their habitual residence.47 Stricto sensu, the definition is not taking into account that
most people affected by the adverse effects of environmental degradation and climate
change tend to remain within their country of origin.48 Thus, when displacement from a
disaster remains within the affected country, environmental migrants should be
recognized as internally displaced persons [hereinafter I.D.P.s]49 under the 1998 Guiding
Principles on Internal Displacement50 [hereinafter G.P.I.D.] or under the Kampala
Convention51 if the event occurs within the African Union’ Member States. In this
regard, the G.P.I.D. recognize that I.D.P.s are people who can be displaced by natural or
human-made disasters and provide the international community and States - that wish
to implement them in their national legislation - with a framework that addresses
various human rights aspects of internal displacement.52 In particular, the G.P.I.D.,
starting from the recognition of those displaced for natural or human-made disasters as
45
   See Chassin, supra note 39, at 274 when she stated that “[a]t a given location and point in time, all people will
   be exposed to the same climatic phenomenon, no matter their age, religion, skin color, political opinions,
   and so on. In essence, [environmental] migration is a collective migration”.
46
   See Kozoll, supra note 40, at. 271; see also Eugénie Delval, From the U.N. Human Rights Committee to European
   Courts: Which protection for climate-induced displaced person under European Law?, E.U. Imm. Asylum L.
   Pol’y (April 8, 2020),https://eumigrationlawblog.eu/from-the-u-n-human-rights-committee-to-european-
   courts-which-protection-for-climate-induced-displaced-persons-under-european-law/ [last visited 6
   December 2022].
47
   See JAMES C. HATHAWAY, THE RIGHTS OF REFUGEES UNDER INTERNATIONAL LAW 1285 (2d ed. 2005).
48
   See GUY S. GOODWIN-GILL & JANE MCADAM, THE REFUGEE IN INTERNATIONAL LAW 2 (3rd ed. 2007). On the tendency
   to remain within the country of origin; see Nansen Initiative on Disaster- Induced Cross Border Displacement
   [hereinafter Nansen Initiative], at. 3 (2015).
49
   See Francis M. Deng (Representative of the Secretary-General), Guiding Principles on Internal Displacement,
   U.N. Doc E/CN.4/1998/53/Add.2 (Feb. 11, 1998). According to the Principle no. 2, “internally displaced
   persons” are:
               [P]ersons or groups of persons who have been forced or obliged to flee or to leave
               their homes or places of habitual residence, in particular as a result of or in order
               to avoid the effects of armed conflict, situations of generalized violence, violations
               of human rights or natural or human-made disasters, and who have not crossed an
               internationally recognized border.
50
   Id.
51
   See African Union [O.A.U.] Convention for the Protection and Assistance of Internally Displaced Persons in
   Africa (Kampala Convention), Dec. 4, 2009.
52
   See GIOVANNI SCIACCALUGA, INTERNATIONAL LAW AND THE PROTECTION OF “CLIMATE REFUGEES” 37 (1st ed. 2020).


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         JUDICIAL TRAJECTORIES IN THE RECOGNITION OF ENVIRONMENTAL MIGRANTS


I.D.P.s, tackle also the protection from and during displacement, the humanitarian
assistance, as well as return, resettlement, and reintegration.53
           Thirdly, the Convention requires that the State of nationality of the applicant is
unable or unwilling to protect.                  However, a person fleeing from the effects of
environmental degradation is not escaping from his or her country of origin, but rather
is seeking shelter from countries that have contributed to environmental degradation
and climate change,54 thus questioning the issue of who should bear the responsibility to
protect those fleeing from an environmental disaster.
           Considering such complexities and criticalities, alternative ways of protection
for this category have been proposed by looking at the noteworthy increase of disputes
and decisions brought before supranational,quasi-judicial and national bodies to
complain about States’ failure to comply with their positive obligations to limit the
effects of climate change established in international agreements, such as the 2015 Paris
Agreement.55 As a matter of fact, there is constant evidence of the effects that climate
change and environmental degradation have on human rights.                                  Several reports,56
including the U.N. Environmental Programme [hereinafter U.N.E.P.], have pinpointed
how the adverse impacts of climate change and environmental degradation “combined
with direct harms to people, property, and physical infrastructure, pose a serious threat
to the enjoyment and exercise of human rights across the world”.57
           In this scenario, the necessity to promote awareness about environmental
migration, on both the adverse effects of climate change on human rights and on the
elaboration of duties in environmental and human rights matters, has been promoted by
the evolutionary interpretation of Courts.
           Under the light of these theoretical premises, the present article proposes an
analysis of the judicial debate about environmental migration. Hence, as a starting point,
it will offer an overview of some noteworthy examples of the so-called “climate change
litigation” (Section 1). Indeed, notwithstanding the lack of proper binding instruments
53
   See François Gemenne & Pauline Brücker, From the Guiding Principles on Internal Displacement to the Nansen
   Initiative: What the Governance of Environmental Migration Can Learn from the Governance of Internal Displacement,
   27 INT’L J. REFUGEE L. 245 (2015).
54
   See McAdam, supra note 20, at 45.
55
   On the proposed solution to tackle the lack of protection of environmental migrants see Chiara Scissa,
   Recognition and Protection of Environmental Migrants in International Law, E-INT’L REL. (Jun. 24, 2021),
   https://www.e-ir.info/pdf/91948 (last visited Dec. 6, 2022).
56
   A variety of international actors have highlighted the environmental effects on human rights. See European
   Parliament Report on the effects of climate change on human rights and the role of environmental defenders on
   this matter, A9-0039/2021 (Mar. 10, 2021), https://www.europarl.europa.eu/doceo/document/A-9-2021-
   0039_EN.html [last visited 6 December 2022]; Rep. of the Office of the U.N.H.C.R. on the Relationship between
   Climate Change and Human Rights, U.N. Doc A/HRC/10/61 (Jan. 15, 2009).
57
   Rep. of the U.N.E.P. on Climate Change and Human Rights (2015), https://www.unep.org/resources/report/
   climate-change-and-human-rights.[last visited 6 December 2022].


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and the inapplicability or inadequacy of the existing legal instruments for protecting
environmental migrants, noteworthy examples of increasing awareness about the
relationship between environmental degradation and human rights can be found in
several cases decided by international human rights judicial or quasi-judicial bodies. In
particular, the implications of two recent decisions of the U.N. Human Rights Committee,
and the increasing sensibility of the European Court of Human Rights in deciding
environmental cases though a human-rights-based approach will be examined.                                           By
moving from the supranational context to the national one, the paper will focus on two
recent decisions (Section 2) adopted by the French Bordeaux Administrative Court
(Section 2.1) and the Italian Court of Cassation (Section 2.2). Indeed, they both represent
relevant examples of the role played by national courts in broadening interpretation and
application of the existing instruments of protection for environmental migrants. The
analysis of the mentioned decisions will be then framed in the wider context of the legal
framework of the European Union (Section 3). Indeed, the question whether the E.U., for
its part, can guarantee a sort of protection for environmental migrants will be answered.
Conclusive remarks will be finally proposed.




       1. RECENT JUDICIAL DEBATE ON ENVIRONMENTAL MIGRATION AT
       THE INTERNATIONAL LEVEL

The first decision – albeit non-binding58 – addressing environmental migration is the one
of the U.N.H.R.C.59 in the famous Ioane Teitiota v. New Zealand case.60 On that occasion, the
Committee recognized in an evolutionary manner, that there is an obligation of
non-refoulement          61   also to environmental migrants.                  Indeed, when the reasonable
foreseeability of a natural event (whether a disaster with immediate effects or an event

58
   It is classified among the “soft law” recognition since the U.N. Human Rights Committee’s decisions are not
   binding. Despite that, they express the international human rights’ bodies trend in dealing with a specific
   issue. On the non-binding character of the United Nations Human Rights Committee’s decisions; see Ginevra
   Le Moli, The Human Rights Committee, Environmental Protection and the Right to Life, 69 INT’L & COMPAR. L. Q. 735
   (2020).
59
   The U.N. Human Rights Committee is the quasi-judicial monitoring body of the International Covenant on
   Civil and Political Rights.
60
   Comm. on the Views adopted by the U.N.C.H.R. under Article 5(4) of the Optional Protocol, U.N. Doc. No.
   2728016, (Jan. 7, 2020). For further analysis on the case; see Amina Maneggia, Non-refoulement of Climate
   Change Migrants: Individual Human Rights Protection or ‘Responsibility to Protect’? The Teitiota Case Before the Human
   Rights Committee, 2 DIRITTI UMANI E DIRITTO INTERNAZIONALE 635 (2020). (It.); see also Villani, supra note 43; Le
   Moli, supra note 58.
61
   See ALEXA JAY ET AL., FOURTH NATIONAL CLIMATE ASSESSMENT, VOLUME II: IMPACTS, RISK, AND ADAPTATION IN THE
   UNITED STATES 33 (Reidmiller et al. eds, 2018).


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with gradual consequences) threatens the right to life or the enjoyment of life in a
dignified manner (art. 6 ICCPR) and the State of origin is unable to fulfill its positive
obligations of protection, third States have an obligation of non-refoulement also to
environmental migrants. In particular, the U.N.H.R.C. established that three conditions
must be met in order to potentially require the application of the right to life and the
obligation of non-refoulement in case of environmental disasters. Firstly, the threats to
the right to life must be proved in its actuality or imminency, thus excluding those
environmental risks that can only be presumed. Secondly, the country of origin should
be unwilling or incapable to apply positive measures to guarantee the protection of the
right to life in the face of environmental events. Lastly, the applicant should bear the
burden of proof in demonstrating not only the real risk for his right to life, but also that
the reasons behind his forced decision to flee depends primarily on the environmental
conditions which make livelihood impossible in that area. As it will be analyzed below,62
the Teitiota case and the arguments issued by the U.N.H.R.C. were used by a National
Court – i.e., the Italian Court of Cassation - in deciding what kind of domestic protection
and guarantee to a migrant coming from an environmentally-degraded area.
          Recently, on the 22nd of September 2022, the same Committee issued another
ground-breaking decision in Daniel Billy and others v. Australia (Torres Strait Islanders
Petition).63 The Committee, after examining a joint complaint filed by eight Australian
nationals and six of their children (all indigenous inhabitants of four small, low-lying
islands in the country’s Torres Strait region), found that Australia has violated the rights
of the Indigenous residents of the Torres Strait Islands under the I.C.C.P.R. by failing to
protect them from the impacts of climate change. This is the first time in which the
Committee found that a State’s failure to protect people from the impacts of climate
change can amount to a violation of International Human Rights Law under the
Covenant. By doing so, the Committee has stated that the effects of climate change affect
unequivocally the enjoyment of human rights.64




62
   See infra Section 2.2 of this paper, at 17.
63
   Comm. on the Views Adopted by the U.N.C.H.R. under Article 5(4) of the Optional Protocol, U.N. Doc. No.
   3624/2019, (Sept. 22, 2022).
64
   See Erin Daly, The UNHRC’s Torres Strait Islands decision: A major Advance, and a Roadmap for the future, THE
   GLOB. NETWORK FOR HUM. RTS AND ENV’T (Oct. 3, 2022), https://gnhre.org/community/the-unhrcs-torres-
   strait-islands-decision-a-major-advance-and-a-roadmap-for-the-future/; accord Christine Voigt, UNHRC is
   Turning up the Heat: Human Rights Violations Due to Inadequate Adaptation Action to Climate Change, EJIL.TALK
   (Sept. 26, 2022), https://www.ejiltalk.org/unhrc-is-turning-up-the-heat-human-rights-violations-due-to-
   inadequate-adaptation-action-to-climate-change/.


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A glimmer of protection seems to be found by looking at the jurisprudence of the
European Court of Human Rights.65 Although the Strasbourg Court has not yet been
called upon to decide on cases ascribable to forced migration for environmental
migration, its copious jurisprudence is an effective tool capable of filling a normative gap
in the international order, since human rights must be recognized for all individuals and,
therefore, also for environmental migrants.66 Indeed, the E.Ct.H.R. has increasingly been
called upon to decide in environmental cases on the grounds that the exercise and
enjoyment of certain rights enshrined in the Convention may be undermined by the
existence of harm to the environment and exposure to environmental risks.67                                    In
particular, the right to life (art. 2), the right to respect for private and family life (art. 8),
and prohibition of torture and cruel, inhuman or degrading punishment or treatment
(art. 3) are likely to take on a significantly broad scope in relation to the case in which
they come into play, and the breadth may even go as far as the recognition of new
individual rights in accordance with the spirit of the Convention to ensure the broadest
possible protection of the individual.68
           Such extensive interpretation has been seen in the Court’s case law concerning
migration.69       As a matter of fact, on several occasions, the Court has guaranteed
protection to foreigners who, as a result of a deportation order, were at the risk of
suffering the violation of one of the rights enshrined in the Convention. Indeed, the
right to life and the prohibition of torture extends the States’ obligations of protection to

65
   It is due to note that, since 2009, the Council of Europe has been recognizing the continuous challenges and
   the lack of binding tools in the protection of environmental migrants. See, e.g., Eur. Par. Ass., Resolution on
   Environmentally Induced Migration and Displacement: A 21st Century Challenge, 9th Sess., Doc. No. 11814 (2009);
   Eur. Par. Ass., Resolution on A Legal Status for «climate refugees», 34th Sess., Doc. No. 2037 (2019).
66
   On the applicability of the European Convention on Human Rights [hereinafter E.C.H.R.] and the E.Ct.H.R.
   case law in the European Court of Justice and Member States’ decisions; see European Charter of
   Fundamental Rights, art. 52(3), (2000/C 364/01) which states that
                 [i]n so far as this Charter contains rights which correspond to rights guaranteed
                 by the Convention for the Protection of Human Rights and Fundamental Freedoms,
                 the meaning and scope of those rights shall be the same as those laid down by the
                 said Convention. This provision shall not prevent Union law [from] providing more
                 extensive protection.
   See also Steve Peers et al., Commentary on the E.U. Charter of Fundamental Rights (Steve Peers et al. eds,
   2nd ed, 2021).
67
   See, e.g., Eur. Ct. H.R., Factsheet, Environment, and the European Court of Human Rights, PRESS UNIT (2022),
   https://www.echr.coe.int/Documents/FS_Environment_ENG.pdf.
68
   See Francesco Perrini, Il Riconoscimento della Protezione Umanitaria in Caso di Disastri Ambientali nel Recente
   Orientamento della Corte di Cassazione [The Recognition of Humanitarian Protection in Case of Environmental
   Desasters in the recent Corte di Cassazione’s case law] , 2 ORDINE INTERNAZIONALE E DIRITTI UMANI 349 (2021).
69
   See Italy v. Saadi, App. No. 37201/66 Eur. Ct. H.R. (2008); Italy v. Ben Khemais, App. No. 246/07 Eur. Ct. H.R.
   (2009); NDL v. Salah Sheekh, App. No. 1947/04 Eur. Ct. H.R. (2007); Sufi and Elmi v. UK, App. No. 8319/07
   and 1144/07 Eur. Ct. H.R. (2011); Italy v. Hirsi Jamaa and Others, App. No. 27765/09 Eur. Ct. H.R. (2012);
   Jabari v. Turkey, App. No. 40035/98 Eur. Ct. H.R. (2000). See Department for the Execution of Judgments
   of the European Court of Human Rights, Thematic Factsheet: Migration and Asylum, COUNCIL OF EUROPE (Nov.
   2021), https://rm.coe.int/thematic-factsheet-migration-asylum-eng/1680a46f9b.


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         JUDICIAL TRAJECTORIES IN THE RECOGNITION OF ENVIRONMENTAL MIGRANTS


include the prohibition of refoulement. In particular, since Soering v. United Kingdom,70 . the
E.Ct.H.R. has been affirming that States cannot directly or indirectly dismiss or reject a
person if there is a risk that his life or physical integrity will be endangered in the
country of origin. Since Soering, the E.Ct.H.R. has been developing a case law on art. 3,71
affirming that a State is not only obliged to guarantee the prohibition of torture but is
also subject to the duty of non-refoulement to the country of origin if there is a risk of
inhuman or degrading treatment72 - the latter being an extraterritorial effect under art.
3 of the E.C.H.R..73




70
   See Soering v. United Kingdom, 88 Eur. Ct. H.R. (1989), where the Court extended the scope of Article 3 to
   include also foreign issues. In particular, the Court affirmed that
                [I]t would hardly be compatible with the underlying values of the Convention,
                that “common heritage of political traditions, ideals, freedom and the rule of law”
                to which the Preamble refers, were a Contracting State knowingly to surrender
                a fugitive to another State where there were substantial grounds for believing
                that he would be in danger of being subjected to torture, however heinous the
                crime allegedly committed. Extradition in such circumstances, while not explicitly
                referred to in the brief and general wording of Article 3 (art. 3), would plainly be
                contrary to the spirit and intendment of the Article, and in the Court’s view this
                inherent obligation not to extradite also extends to cases in which the fugitive would
                be faced in the receiving State by a real risk of exposure to inhuman or degrading
                treatment or punishment proscribed by that Article (art. 3)
71
   See Cruz Varas and Others v. Sweden, App. No. 46/1990, 1990 Y.B. Eur. Conv. on H.R. (Eur. Ct.
   H.R.); Vilvarajah and Others v. United Kingdom, App. No. 13163/87, 13164/87, 13165/87, 13447/87,
   13448/87, 1991 Y.B. Eur. Conv. on H.R. (Eur. Ct. H.R.); Chahal v. United Kingdom, App. No. 22414/93,
   1996 Y.B. Eur. Conv. on H.R. (Eur. Ct. H.R.); Italy v. Saadi, App. No. 37201/66 Eur. Ct. H.R.; M.S.S.
   v. Belgium and Greece, App. No. 30696/09 Eur. Ct. H.R. (2011); Tarakhel v. Switzerland, App.
   No. 29217/12 Eur. Ct. H.R. (2014); Khlaifia and Others v. Italy, App. No. 16483/12 Eur. Ct. H.R.
   (Dec. 15, 2016), https://hudoc.echr.coe.int/fre?i=001-170054. In addition, there is the pending Duarte
   Agostinho v. Portugal, App. No. 39371/20 Eur. Ct. H.R. (2020), https://hudoc.echr.coe.int/fre?i=002-
   13055 which, among the others, is dealing with a violation of art.                                     3 ECHR,
   https://hudoc.echr.coe.int/fre#%7B%22fulltext%22:[%22duarte%22],%22sort%22:[%22kpdate%20Descending
   %22],%22itemid%22:[%22002-13055%22]%7D [last visited 6 December 2022].
72
   See Perrini, supra note 68.
73
   See Matthew Scott, Natural Disasters, Climate Change and Non-Refoulement: What Scope for Resisting Expulsion
   Under Articles 3 and 8 of the European Convention on Human Rights?, 26 INT’L J. REFUGEE L. 404 (2014).


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Indeed, it could be affirmed that in the case of refoulement of an environmental migrant
to a country where environmental degradation gives rise to conflicts,74 or, in general,
unlivable conditions that seriously undermine the right to life thus, concretizing
inhuman or degrading treatment,such State’s behavior would be incompatible with the
case law developed by the E.Ct.H.R.75
          Such evolutionary interpretation of rights – i.e., art. 2 and art.8 – can also be
seen in environmental protection. Indeed, in the leading case Oneryldiz v. Turkey,76 the
Court found that States have a positive obligation to respect the right to life not only
when monitoring hazardous industrial activities, but also in case of environmental
disasters. Also, in the case Budayeva and Others v. Russia,77 the Court further stated that
when there are serious and foreseeable risks to the safety of persons, national
authorities have a duty to take measures capable of mitigating the effects of dangerous
natural events. In the Court’s jurisprudence, the protection of the right to a healthy
environment also passes through a broad interpretation of art. 8 E.C.H.R. as testified by a
variety of cases.78 Such decisions concerned severely polluting activities and the Court
has broadly interpreted art.             8 to the point of recognizing that severely polluting
activities may constitute a limitation of the right to respect for the private life of persons
living in the affected areas.79




74
   See Brambilla & Castiglione, supra note 33; see also Emanuela Parisciani, Migranti in fuga da situazioni
   di conflitto e violenza indiscriminata e la Convenzione Europea dei diritti dell’uomo: a margine della Sentenza
   K.A.B. contro Svezia [Migrants Fleeing from Sitautions of Conflict and Arbitrary Violence and the
   European Human Rights Convention: Notes on K.A.B Sentence Against Sweden] , SIDIBLOG (Nov. 6,
   2013) (It.), http://www.sidiblog.org/2013/11/06/migranti-in-fuga-da-situazioni-di-conflitto-e-violenza-
   indiscriminata-e-convenzione-europea-dei-diritti-delluomo-a-margine-della-sentenza-k-a-b-contro-
   svezia/.
75
   On the assessment of the influence of health grounds in the application of the principle of non-refoulement
   under Art. 3 D v. United Kingdom, App. No. 30240/96, 1997 Y.B. Eur. Conv. on H.R. (Eur. Ct. H.R.). The
   line of reasoning of D v. United Kingdom was later concretized in these cases; see also N. v. United Kingdom,
   App. no. 26565/05 Eur. Ct. H.R. (2008); Paposhvili v. Belgium, App. No. 41738/10 Eur. Ct. H.R. (2016), M.S.S.
   v. Belgium and Greece, App. No. 30696/09 Eur. Ct. H.R. (2011); Sufi and Elmi v. U.K., App. No. 8319/07 and
   1144/07 Eur. Ct. H.R. (2011).
76
   Öneryildiz v. Turkey, App. No. 48939/99, ¶ 71-72 Eur. Ct. H.R. (2004).
77
   Budayeva and Others v. Russia, App No. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, ¶116, Eur.
   Ct. H.R. (2008).
78
   See generally López Ostra v. Spain, App. No. 16798/90, Eur. H.R. Rep. (1994); Fadeyeva v. Russia, App. No.
   55723/00 Eur. Ct. H.R. (2005); Di Sarno and Others v. Italy, App. No. 30765/08 Eur. Ct. H.R. (2012); Cordella
   and Others v. Italy, App. No. 54414/13 and 54264/15, (2019).
79
   Also, it is worth mentioning the Duarte Agostinho v. Portugal, App. No. 39371/20, (2020),
   https://hudoc.echr.coe.int/fre#%7B%22fulltext%22:[%22duarte%22],%22sort%22:[%22kpdate%20Descending
   %22],%22itemid%22:[%22002-13055%22]%7D, which is currently pending before the Court.


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      2. BEYOND THE INTERNATIONAL CONTEXT: NATIONAL COURTS OF
      E.U. MEMBER STATES AND ENVIRONMENTAL MIGRATION

Having illustrated the international scenario in which the human rights’ effect of climate
change and environmental degradation have been tackled, it is due to note that some
National Courts of E.U. Member States have started recognizing the necessity to uphold
the rights of environmental migrants, taking – directly or indirectly – into consideration
the arguments upheld at the international level. In particular, the analysis will focus on
two noteworthy rulings adopted by national courts in France and Italy, which stressed
how the principle of non-refoulement and an evolutionary interpretation can be an
alternative instrument to guarantee protection to environmental migrants.
          The choice to compare these two decisions has been made with the awareness
that these are two of the very few decisions at the national level that recognized the
environmental conditions in the countries of origin that expose migrants to the
violation of their fundamental rights – on the one hand, the right to health, and on the
other hand, the right to life – in the event of repatriation.80



     2.1. RIGHT TO HEALTH, NON‐REFOULEMENT AND HIGH LEVEL OF AIR
     POLLUTION: THE DECISION OF THE FRENCH BORDEAUX COURT OF
     APPEAL

In December 2020, the French Bordeaux Court of Appeal took a breakthrough decision by
renewing a residence permit (the so-called carte de séjour temporaire) on the basis of the
environmental conditions in the applicant’s country of origin.81
          The forty-year-old Bangladeshi man – known in the French news as Sheel – arrived
in France in 2011. After diverse refusals of his asylum application, in 2015 he was able to
obtain a temporary residence permit. As a matter of fact, the French Code de l’entrée et du
séjour des étrangers et du droit d’asile [Code of the Entry and Residence of Foreigner and the
Right of Asylum] envisages a specific residence permit for foreign nationals with health
problems which require specific medical treatments that cannot be granted properly in




80
   In particular, there are few cases tackling these issues at the national level within the E.U. See VG
   (Administrative Trial Court) Baden - Wuerttemberg, Dec. 17, 2020, A 11 S 2042/20, at. 25 (Ger.).
81
   See Cour administrative d’appel [CAA] [regional administrative court of appeal] Bordeaux, 2ème ch., Dec. 18,
   2020 20BX02193, 20BX02195, http://www.marinacastellaneta.it/blog/wp-content/uploads/2021/01/CAA-
   de-BORDEAUX-.pdf (Fr.).


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their country of origin.82 Indeed, that was the case of Sheel who suffered from severe
asthma and sleep apnea.83
           Nevertheless, in 2019, the Haute-Garonne Prefecture’s medical advisory team
refused to renew his carte de séjour temporaire,84 affirming the adequacy of the Bangladesh
medical system in treating his illnesses,85 thus leading to a deportation order.
Subsequently, on 15 June 2020, his case was brought before the Administrative Court of
Toulouse which rejected the Prefecture’s deportation order. According to the Court in
Toulouse, the man’s return to Bangladesh would have led not only to insufficient
treatment, but it would have also exacerbated his medical condition due to the high level
of air pollution in the country.86                   Finally, in December 2020, the Haute-Garonne
Prefecture appealed the decision of the Administrative Court of Toulouse, and the case
was then brought before the Court of Administrative Appeals in Bordeaux.
           In particular, by interpreting national legislation, the Court considered the
following relevant factors for determining the inadequacy of the Bangladesh health
system in providing and granting effective services to treat the man’s various diseases:
the unavailability in Bangladesh of both the prescribed medications – which had relieved
him during the observation period – and the ventilator that required a monthly

82
   According to art. L-313-11 of the French Code de l’entrée et du séjour des étrangers et du droit d’asile [Code of the
   Entry and Residence of Foreigner and the Right of Asylum] (Fr.),
               A l’étranger résidant habituellement en France, si son état de santé nécessite une
               prise en charge médicale dont le défaut pourrait avoir pour lui des conséquences
               d’une exceptionnelle gravité et si, eu égard à l’offre de soins et aux caractéristiques
               du système de santé dans le pays dont il est originaire, il ne pourrait pas y bénéficier
               effectivement d’un traitement approprié. La condition prévue à l’article L. 313-2
               n’est pas exigée. La décision de délivrer la carte de séjour est prise par l’autorité
               administrative après avis d’un collège de médecins du service médical de l’Office
               français de l’immigration et de l’intégration, dans des conditions définies par décret
               en Conseil d’Etat. [. . . ]
83
   See Maro Mantziara, Climate Refugees Can’t Wait Any Longer, OUR WORLD TOO (2020),
   https://ourworldtoo.org.uk/2021/11/03/climate-refugees-cant-wait-any-longer/ [last visited 6 December
   2022].
84
   The medical advisory team had the duty to revise the applicant’s health conditions in order to renovate the
   residence permits. See art. L-313-11 of the French Code of the Entry and Residence of Foreigner and the
   Right of Asylum.
85
   According to art. R. 313-22 of the French Code de l’entrée et du séjour des étrangers et du droit d’asile [Code of the
   Entry and Residence of Foreigner and the Right of Asylum] (Fr.),
               [P]our l’application du 11° de l’article L. 313-11, le préfet délivre la carte de séjour
               au vu d’un avis émis par un collège de médecins à compétence nationale de l’Office
               français de l’immigration et de l’intégration. / L’avis est émis dans les conditions
               fixées par arrêté du ministre chargé de l’immigration et du ministre chargé de la
               santé au vu, d’une part, d’un rapport médical établi par un médecin de l’Office
               français de l’immigration et de l’intégration et, d’autre part, des informations
               disponibles sur les possibilités de bénéficier effectivement d’un traitement approprié
               dans le pays d’origine de l’intéressé. (. . .).
86
   See Luc Lenoir, La France a-t-elle accueilli son premier ‘réfugié climatique’?”, LE FIGARO (Jan. 8, 2021),
   https://www.lefigaro.fr/faits-divers/la-france-a-t-elle-accueilli-son-premier-refugie-climatique-20210108,
   (Fr.).


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replacement,87 the significant improvements to his respiratory capacity since his arrival
to France, and the hearing evidence of his father’s death of asthma attack at
fifty-four-years-old.88 As a matter of fact, the Court stated that:

            [I]t appears from the documents in the file that [Sheel] suffers from a
            chronic respiratory pathology combining severe allergic asthma
            treated daily with Symbicort 400 (antiasthmatic), Montelukast
            (antiasthmatic),         Azélastine        (antihistamine)        and      Salbutamol
            (bronchodilator), and a severe sleep apnea syndrome requiring the
            use of an electric ventilation device every night, which requires
            biannual maintenance and monthly replacement of the mask, filters
            and tubes. In Toulouse on July 25, 2019, the doctor in charge of
            assessing his health condition in Toulouse certified that the short and
            long-term care he receives has stabilized his respiratory function,
            which went from [fifty-eight percent] in 2013 to [seventy percent] in
            2017.89

Surprisingly, the Court acknowledged that Bangladesh’ environmental conditions –
namely the severe air pollution levels in the applicant’s country of origin – would have
led to a worsening of the respiratory pathology and even to death. Indeed, the Court
stated that:

            [. . .] in Bangladesh, [. . .] the rate of fine pollutant particles is one of
            the highest in the world, asthma-related mortality is 12.92 per
            100,000 inhabitants compared to 0.82 in France. [Sheel], whose father
            died of asthmatic decompensation at the age of [fifty-four], would
            thus be exposed to a risk of aggravation of his state of health and
            premature death.90




87
   See Chiara Scissa, Migrazioni Ambientali tra Immobilismo Normativo e Dinamismo Giurisprudenziale: Un’Analisi di
   Tre Recenti Pronunce [Environmental Migration between Normative Immobilism and Case Law Dynamism: an
   Analysis of Three Resent Sentences], 2 FORUM DI QUADERNI COSTITUZIONALI RASSEGNA 296 (2021).
88
   See Amali Tower & Ryan Plano, French Court Recognizes Country’s First Environmentally Impacted Migrant,
   CLIMATE REFUGEES, (Jan. 15, 2021), https://www.climate-refugees.org/spotlight/2021/1/15/french-court.
89
   See Cour administrative d’appel [CAA] [regional administrative court of appeal] Bordeaux, 2ème ch., Dec. 18,
   2020 20BX02193, 20BX02195, http://www.marinacastellaneta.it/blog/wp-content/uploads/2021/01/CAA-
   de-BORDEAUX-.pdf, at. 4.
90
   Id.


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In addition, the Court of Bordeaux quoted the data collected by the World Health
Organization (W.H.O.), according to which “air pollution was a high aggravating risk
factor in the case of 572,600 deaths in Bangladesh that were attributed to
non-communicable diseases in 2018 alone”.91                          Citing the 2020 Environmental
Performance Index (E.P.I.), the Court recognized also that Bangladesh is one of the
countries with the worst levels of air pollution in the world.92
          The Court overturned the deportation order considering that the general
context of the Bangladesh’s health system and the inevitable adverse effects of the
environmental degradation would surely exacerbate the health and life conditions of the
applicant, leading eventually to a risk to his own life and even to death. Thus, the Court
found that the health and environmental conditions of the country of origin were so
alarming that the renewal of the residence permit for health reasons was deemed
necessary. As a matter of fact, the Court concluded its judgment by affirming that:

            [T]he accessibility and the quality-of-care services are not
            comparable to European standards in Bangladesh, where health
            professionals deplore a lack of equipment and drug shortages. 93
                      Thus, [Shell] would find himself confronted in his country of
            origin both with an aggravation of his respiratory pathology due to
            atmospheric pollution, with the risk of interruption of a treatment
            less well suited to his state of health, and to malfunctions of the
            respiratory system which he has a vital need due, on the one hand, to
            difficulties in replacing parts, in particular pipes that have to be
            changed regularly, and on the other hand, to power cuts during the
            night. In these particular circumstances, he could not be regarded as
            actually being able to benefit from appropriate treatment in
            Bangladesh, so that the refusal to renew his residence permit
            disregards the provisions of the Code for the Entry and Stay of
            Foreigners and the right to asylum.94

91
   Id.
92
   Id.
93
   On the European standards in health matters; see GIACOMO DI FEDERICO & STEFANIA NEGRI, UNIONE EUROPEA
   E SALUTE. PRINCIPI, AZIONI, DIRITTI E SICUREZZA 307-39 (2020). It is due to note that the 8th of December,
   the Council of the E.U. finally gave “green light” to adapt EU standardization rules. Such regulation lays
   down procedures for developing harmonized standards within the E.U. which will make it easier to place
   products on the single market and thereby they will strengthen the E.U.’s competitiveness. See Council of
   the European Union Press Release 1059/22, Council gives final green light to adapted EU standardization rules,
   (December 8, 2022).
94
   See Cour administrative d’appel [CAA] [regional administrative court of appeal] Bordeaux, 2ème ch., Dec. 18,
   2020 20BX02193, 20BX02195, http://www.marinacastellaneta.it/blog/wp-content/uploads/2021/01/CAA-
   de-BORDEAUX-.pdf, at. 4. In particular, the refusal to renew his residence permit would violate Art. 11°
   of Art. L. 131-11.
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         JUDICIAL TRAJECTORIES IN THE RECOGNITION OF ENVIRONMENTAL MIGRANTS


This was the first case in which environmental degradation and its connection with the
enjoyment of the individual right to health was evoked as the leading argument for a
Court’s final ruling in France.



     2.2.     ENVIRONMENTAL DEGRADATION AND NON‐REFOULEMENT: THE
     DECISION OF THE ITALIAN SUPREME COURT OF CASSATION.

In November 2020, the Italian Supreme Court of Cassation95 upheld the action brought
by a Nigerian applicant against the decision of the Court of First Instance in Ancona that
rejected his application for subsidiary protection, or in the alternative, humanitarian
protection.96
            In this case,97 the applicant, following the environmental instability in its region
of origin – the Niger Delta – fled to Italy, seeking protection. According to the man, his
region of origin was characterized by the presence of a serious form of environmental
instability created by the indiscriminate exploitation of the area, primarily by oil
companies; conflicts and political instability; environmental issues linked to the frequent
sabotage, theft and damage causing spillages of oil shares, thus contaminating all zones
nearby.98 However, despite the critical situation in the region, the Court of First Instance
of Ancona did not consider sufficient the presence of an armed conflict and generalized
violence in the region – capable of constituting a serious and individual threat to the
person’s life – to grant subsidiary protection.99                    Additionally,the Tribunal did not
consider granting humanitarian protection, given the condition of “environmental

95
   Besides the decisions by the Italian Supreme Court of Cassation, also courts of first instance
   decided cases on environmental migration. See, e.g., Trib. Aquila, 18 Feb. 2018, n. 1522/1,
   https://www.dirittoimmigrazionecittadinanza.it/allegati/fascicolo-n-2-2018/umanitaria-3/245-trib-
   aq-16-2-2018/file, (It.).
96
   It is due to note that in the Italian legislation, apart from the traditional instrument of international
   protection, there is the humanitarian protection regulated by the D.Lgs. n. 288/188 at the Article 5, para.
   6. The humanitarian protection might be granted when the applicant is not eligible for international
   protection but affirms and proves to have specific and particular needs recognized as fundamental.
   See Nazzarena Zorzella, La Protezione Umanitaria nel Sistema Giuridico Italiano, DIRITTO, IMMIGRAZIONE E
   CITTADINANZA, Mar. 2018, at 1. (It.); Valeria Marengoni, Il Permesso di Soggiorno per Motivi Umanitari, DIRITTO,
   IMMIGRAZIONE E CITTADINANZA, Dec. 2012, at 59.
97
   Cass., 24 Feb. 2021, n. 5022, Giur. It. 2021, II (It.).
98
   Id. at 6.
99
   Directive 2011/95, supra note 41, at art. 2(f), a person eligible for subsidiary protection is
               a third- country national or a stateless person who does not qualify as a refugee but in
               respect of whom substantial grounds have been shown for believing that the person
               concerned, if returned to his or her country of origin, or in the case of a stateless
               person, to his or her country of former habitual residence, would face a real risk of
               suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2)
               does not apply, and is unable, or, owing to such risk, unwilling to avail himself or
               herself of the protection of that country.


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 disaster” and the collective insecurity in the region of origin.100 Due to the Tribunal’s
 lack of assessment of the situation in the Niger Delta in the evaluation of the applicant’s
 requests, the Court of Cassation found grounds to justify the grant of humanitarian
 protection under Italian law.101
 Starting from mentioning the noteworthy Teitiota case and its interpretation of the right
 to life,102 the Court of Cassation stated that:

              Whenever, [. . .] in a given area, the judge recognizes a situation
              capable of integrating an environmental disaster, or a context of such
              severe impairment of the natural resources that there is the exclusion
              of entire segments of the population from their enjoyment, the
              assessment of the widespread danger existing in the applicant’s
              country of origin, for the purpose of the humanitarian protection’s
              recognition, must be conducted with specific reference to the
              particular risk for the right to life and to a decent life deriving from
              the     environmental           degradation,         climate       change       and      the
              unsustainable development of the              area.103

 Through the reference to the Teitiota case, the Court seemed to confirm an extensive
 interpretation of the right to life in the evaluation of international protection through
 the transposition of the international law’s principles of the U.N. Committee’s case in the
 national system, not only in terms of rights of non-refoulement, but also in terms of
 granting and recognizing some forms of protection.104 As a matter of fact, the Committee
 had stated the principle according to which States have the duty to ensure and grant
 people’s right to life.105 To be recalled that such rights, according to the U.N. Committee,
 also encompass all the reasonably foreseeable threats and potentially lethal situations
 that may involve the loss of life or a substantial worsening condition of the existence,
 including environmental degradation, climate change and unsustainable development.
 These environmental phenomena constitute some of the most serious and urgent threats
 to the life of present and future generations106 : they can negatively affect the well-being

100
    For further analysis of the criminal institute of “environmental disaster” described in the Italian Criminal
    Code, see Fabrizio Vona, Environmental Disasters and Humanitarian Protection: A Fertile Ground for Litigating
    Climate Change and Human Rights in Italy?, 1 IT. REV. INT’L & COMPAR. L. 146 (2021).
101
    See supra, note 96. In addition, it must be said that the “humanitarian protection” can be granted when
    applicant’s expulsion will zeroing his fundamental rights to life, freedom, and auto-determination; see Cass.,
    24 Febbraio 2021, n. 5022, Giur. It. 2021, II (It); Cass., 4 Febbraio 2022, n.2563, Giur. It. 2022, II (It), at. 5.4.
102
    See U.N. Human Rights Committee, views adopted, supra note 60.
103
    See Cass., 24 Febbraio 2021, n. 5022, Giur. It. 2021, II (It), at 5.
104
    See Perrini, supra note 68, at 349.
105
    See U.N. Human Rights Committee, views adopted, supra note 60, at 9.12 and 9.13.
106
    Id. at 9.4.


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           JUDICIAL TRAJECTORIES IN THE RECOGNITION OF ENVIRONMENTAL MIGRANTS


 of an individual and, therefore, can cause a violation of the individual right to life.107 In
 particular, the U.N. Committee considered that the general principle of non-refoulement –
 which prohibits the repatriation of an asylum seeker in a country in which there are
 substantial risks of irreparable damage to personal safety or that of the family members
 – also includes the right to a decent and dignified existence and to be free from any act
 or omission that could cause an unnatural or premature death of the human person.
 Based on U.N. Committee’s considerations, the Italian Court embraced the idea that the
 risks connected to the individual’s right to life are not only those associated with armed
 conflicts.       On the contrary, there are also “situations of social and environmental
 degradation or of unsustainable exploitation of the natural resources”           108   capable of
 weakening the right to life and the right to live with dignity. In particular, the Court
 affirmed that:

              [F]or the purpose of recognizing protection, the risks to the
              individual life do not necessarily derive from an armed conflict. On
              the contrary, they can depend on the socio-environmental conditions
              [. . . ] [suitable to] jeopardize the very survival of the individual and
              hisrelatives. In this perspective, war or armed conflict, in general,
              represent the most striking manifestation of man’s destructive
              action, but they do not exhaust the range of behaviors capable of
              compromising the individual’s right to live with dignity.109

 Thus, the Court specified that the concept of “ineradicable core constituting the
 foundation of personal dignity [. . . ] is the minimum essential limit below which the
 right to life and the right to a dignified existence of an individual is not guaranteed”.110
 According to the Court, a violation of such rights can occur not only with reference to
 armed conflict, but, also, in relation to any context that is materially capable of putting
 the fundamental rights to life, liberty and self-determination of the individual at risk.
 Among such situations, the Court also encompasses “situations of environmental
 disaster, [. . .] climate change, and unsustainable exploitation of natural resources”.111
 More in detail, a risk to the individual’s right is present in each situation of
 environmental degradation capable of undermining the right to life, the right to
 freedom, to auto-determination.


107
    Id. at 9.5. c
108
    Cass., 24 Febbraio 2021, n. 5022, Giur. It. 2021, II (It), at 5-6.
109
    Id.
110
    Id.
111
    Id. at 8-9.


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 2023]                            UNIVERSITY OF BOLOGNA LAW REVIEW                     [Vol. 8:1


 Ultimately, the Italian Court of Cassation’s decision demonstrates the progress in
 upholding the environmental migrants’ rights. Firstly, the Court acknowledged the
 necessity to grant protection to those migrating from their country of origin because of
 environmental degradation and the effects of climate change. Secondly, the Court relied
 on its reasoning on the U.N. Human Rights Committee’s decision in the Teitiota case, thus
 highlighting – besides its interpretation of the individual’s right to life – the importance
 of supranational quasi-judicial bodies in interpreting human rights in an evolutionary
 way. Thirdly, the Court confirms its line of reasoning112 and its case-by-case approach of
 scrutiny113 in dealing with the particular risk to the right to life in a specific territorial
 area.
           The Court’s approach seems to confirm that in the event the country of origin is
 affected by natural disasters or environmental degradation, it is sufficient for the
 applicant to demonstrate a general difficulty in having access to the minimum
 conditions for the enjoyment of a dignified life. However, such approach raises some
 concerns regarding its compatibility with the residence permit for humanitarian
 reasons.      More in detail, the rationale behind the humanitarian protection is the
 protection of situations of personal and individual vulnerabilities,                  whereas
 environmental degradation and natural disasters – as mentioned above in relation to the
 Geneva Convention114 – are considered as general threats to the rights of the individual
 even if their effects lead to vulnerable situations.




112
    See Corte di Cassazione, prima sezione, Ordinanza n. 7832, 20th Mar. 2019 (It.).
113
    Villani, supra note 43; Le Moli, supra note 58, at 5.
114
    See supra Introduction, at 6-9.


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          JUDICIAL TRAJECTORIES IN THE RECOGNITION OF ENVIRONMENTAL MIGRANTS


       3. SPOTLIGHT ON THE EUROPEAN UNION LEGAL FRAMEWORK

 The European Union institutions (i.e., European Council, Council of the E.U., the European
 Commission and the European Parliament), Member States – i.e., also France and Italy -
 have all, through various degrees and at different time period, tried to offer leadership
 in international climate change politics in global fora.115 Despite the E.U. being late in
 addressing the topic of environmental migration, it has increasingly addressed the nexus
 of environmental change and migration over the past decade.116
           Starting from the institutional level, the European Commission has frequently
 recognized the nexus between human mobility and the environment and stressed the
 necessity to address environmental migrations in various communications.117 Also, the
 European Parliament, for its part, promoted the urgency to address the topic, through
 the adoption of a Resolution.118
           Despite such E.U. institutional commitments, when it comes to binding
 instruments it is possible to note that environmental migration suffers the same
 shortcomings highlighted at the international level.                     In particular, environmental
 migration is placed in an uncoordinated limbo between E.U. environmental and
 migration policies, thus being somehow in contrast with the objectives and values that
 guide these policies within the E.U.
           Looking at primary law provisions defining the E.U. migration policies, they are
 designed in a broad manner, thus capable of handling environmental migrants’
 protection.119 In particular, art. 77(3) T.F.E.U. states that the Union shall ensure “the
 absence of any controls on persons, whatever their nationality, when crossing internal

115
    On the role of the E.U. in climate change politics see RUDIGER WURZEL & JAMES CONNELLY, THE EUROPEAN UNION
    AS A LEADER IN INTERNATIONAL CLIMATE CHANGE POLITICS 1 (Rudiger Wurzel & James Connelly eds., 2011).
116
    As a matter of fact, besides the references mentioned in the present paper, environmental
    change and migration is addressed also in the E.U. civil protection, humanitarian aid
    and development policies.            See European Parliament Study, “Climate Change and Migration.
    Legal and Policy Challenges and Responses to Environmentally Induced Migration” (July, 2020),
    https://www.europarl.europa.eu/RegData/etudes/STUD/2020/655591/IPOL_STU(2020)655591_EN.pdf
    [last visited 6 December 2022].
117
    Communication, The Global Approach to Migration and Mobility, COM (2011) 743 final (Nov.18, 2011), p. 7;
    Communication, An EU Strategy on Adaptation to Climate Change, COM (2013) 216 final (April 16 2013),
    and its Staff Working Document, Climate change, Environmental Degradation, and Migration, SWD (2013)
    138 final (April 16, 2013); Communication, A European Agenda on Migration, COM (2015) 240 final, (May
    13, 2015) p. 7. For a further analysis; see Monika Mayrhofer & Margit Ammer, People Moving in the Context of
    Environmental Change: The Cautious Approach of the European Union 4 EUR. J. MIGRATION & L. 389 (2014).
118
    Joint Motion for a Resolution on the consequences of drought, fire, and other extreme weather phenomena:
    increasing the EU’s efforts to fight climate change, Eur. Parl. Doc, (2022/2829(RSP)), (2022). See European
    Parliament Study, supra note 116.
119
    See Giuseppe Morgese, Environmental Migrants and the EU Immigration and Asylum Law: Is There Any Chance for
    Protection, in Migration and the Environment. Some Reflections on Current Legal Issues and Possible Ways
    Forward 50 (Giovanni C. Bruno et al., 2017).


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 borders”, but also that “carrying out checks on persons and efficient monitoring of the
 crossing of external borders”. In addition, art. 79 T.F.E.U. affirms that the Union should
 have “a common immigration policy aimed at ensuring the efficient management of
 migration flows, fair treatment of third-country nationals, and the prevention of, and
 enhanced measures to combat, illegal immigrations and trafficking in human beings”
 and that such policies, according to art. 80 T.F.E.U., “shall be governed by the principle of
 solidarity and fair sharing of responsibility”. In turn, the Charter of Fundamental Rights
 of the European Union [hereinafter E.C.H.F.R.] states the obligation to respect the
 fundamental rights of every individual as such and the prohibition of discrimination in
 any respect (art. 21), and reaffirms, in addition to the right to asylum (art. 18) as
 guaranteed by international conventions, the prohibition of collective expulsions and
 the prohibition of extradition (art. 19) when there is a risk of the death penalty, torture
 or inhuman and degrading treatment (art. 4).120
           Besides these broad formulations in the Treaties, current secondary law
 instruments fail to grant environmental migrants a proper protection within the E.U.121
 Looking at the Directive 2011/95 [hereinafter Qualification Directive]122 - which
 regulates both the refugee’s status123 See Heather Alexander & Jonathan Simon, Unable to
 Return in the 1951 Refugee Convention: Stateless Refugees and Climate Change, 26 FLORIDA J. INT’L
 L. 532 (2015). and the subsidiary protection124 See Hemme Battjes, Subsidiary Protection
 and Other Alternative Forms of Protection, in Research Handbook on International Law and
120
    The prohibition of inhuman and degrading treatment is a core argument within the case law of the E.C.J.
    which, with reference to the Dublin Regulation, challenges the application of the criterion of responsibility
    of the country of first entry when there are systemic deficiencies in the asylum procedure and in the
    applicants’ reception conditions in that country which constitute serious and proven grounds for believing
    that the applicant runs a real risk of being subjected to inhuman and degrading treatment. See Case C-394/12,
    Shamso Abdullhai v. Bundesasylamt, ECLI:EU:C:2013:813 (Dec. 13, 2013); Case C-4/11, Bundesrepublik
    Deutschland v Kaveh Puid, ECLI:EU:C:2013:740 (Nov. 14, 2013); Case C-411/10 and C-493/10, N. S. v Secretary
    of State for the Home Department and M. E. v Refugee Applications Commissioner and Minister for Justice,
    Equality and Law Reform, ECLI:EU:C:2011:865 (Dec. 21, 2011).
121
    For an analysis of the applicability of E.C.A.S. instruments to environmental migrants; see Morgese, supra
    note 119, at 47.
122
    See Directive 2011/95, supra note 41, at art. 9-26.
123
    Id. art. 2, lett. D):
                  “refugee” means a third-country national [or a stateless person] who, owing to a
                  well- founded fear of being persecuted for reasons of race, religion, nationality,
                  political opinion or membership of a particular social group, is outside the country
                  of nationality [or the coun- try of former habitual residence] and is unable or, owing
                  to such fear, is unwilling to avail himself or herself of the protection of that country.
124
    See Directive 2011/95, supra note 41, at art. 2, lett. F)
                  a person eligible for subsidiary protection’ means a third-country national or a
                  stateless person who does not qualify as a refugee but in respect of whom substantial
                  grounds have been shown for believing that the person concerned, if returned to his
                  or her country of origin, or in the case of a stateless person, to his or her country
                  of former habitual residence, would face a real risk of suffering serious harm [. . .
                  ] and is unable, or, owing to such risk, unwilling to avail himself or herself of the
                  protection of that country.


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          JUDICIAL TRAJECTORIES IN THE RECOGNITION OF ENVIRONMENTAL MIGRANTS


 Migration 541, 550-56 (Vincet Chetail & Céline Bauloz eds, 2014). : as for the refugee
 status, the Directive recalls the 1951 Refugee Convention’s definition,125 thus raising the
 same concerns explained above.126 Whereas in the subsidiary protection, the “real risk of
 suffering a serious harm” requested to obtain such protection does not seem applicable,
 unless a particularly extensive interpretation127 of the notion of “serious harm” occurred
 ex art. 15(b).128 The Court of Justice of the European Union (C.J.E.U.) – despite not having
 yet had the occasion to decide on environmental migration cases – tried to expand the
 interpretation of “serious harm” – as a ground encompassing the environmental factor –
 in the subsidiary protection under art. 15(b) of the Qualification directive. While in
 Elgafaji v. Staatssecretaris van Justitie,129 the Court ruled that the wording of art. 15(b) is
 similar to art. 3 E.C.H.R. – thus recalling all the case law previously mentioned                           130 ;   in
 M’Bodj v.   Belgium131   the Luxembourg judges affirmed that the “serious harm” required by
 the directive must be different from art. 3 E.C.H.R., and that it must be related to
 personal persecution and come from a third party (ex art. 6 of the Directive).132
 Hence, environmental migrants do not seem to obtain proper safeguards under the
 subsidiary protection. Another (arguably) form of protection could be the Temporary
 Protection Status [hereinafter T.P.S.] enriched in the Directive 2001/95.133 As stated in
 art. 1, the purpose of the Directive is:

             [T]o establish minimum standards for giving temporary protection in
             the event of a mass influx of displaced persons from third countries
             who are unable to return to their country of origin and to promote a


125
    On the applicability of the 1951 Geneva Convention within the E.U. legal system without its ratification,
    see Case C-411/10 and C-493/10, N. S. v Secretary of State for the Home Department and M. E. v Refugee
    Applications Commissioner and Minister for Justice, Equality and Law Reform, ECLI:EU:C:2011:865.
126
    See supra Introduction, at 6-9.
127
    An example of such extensive interpretation can be seen in the Judgment of the Case C-163/17, Abubacarr
    Jawo v. Bunderrepublik Deutschalnd, ECLI:EU:C:2019:218, ¶ 92 (March 19, 2019). See Maarten den Heijer,
    Transferring a Refugee to Homelessness in Another Member States: Jawo and Ibrahim, 57 COMMON MKT. L. REV. 539
    (2020).
128
    See Directive 2011/95, supra note 41, at art. 15(b) where there are listed the cases in which there is a “serious
    harm”. On the limits of the E.U. subsidiary protection in the protection of environmental migrants; see
    also FRANCESCA PERRINI, CAMBIAMENTI CLIMATICI E MIGRAZIONI FORZATE. VERSO UNA TUTELA INTERNAZIONALE DEI
    MIGRANTI AMBIENTALI 83 (2018).
129
    Case C-465/07, Meki Elgafaji and Noor Elgafaji v Staatssecretaris van Justitie, ECLI:EU:C:2009:94, (Feb. 17,
    2009).
130
    See supra Section 1, at 11-14.
131
    Case C-542/13, Mohamed M’Bodj v. État belge, ECLI:EU:C:2014:2452, (Dec. 18, 2014).
132
    See Delval, supra note 46.
133
    See Council Directive 2001/55 of July 20, 2001, On Minimum Standards for Giving Temporary Protection in
    the Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts Between
    Member States in Receiving such Persons and Bearing the Consequences Thereof, annex, 2001 O.J. (L 212)
    12, 23.


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             balance of effort between Member States in receiving and bearing the
             consequences of receiving such persons.

 Nevertheless, the definition of “mass influx” should encompass “the arrival in the
 Community of a large number of displaced persons, who come from a specific country or
 geographical area, whether their arrival in the Community was spontaneous or aided [. .
 .]”.134 Thus, some authors consider the T.P.S. as an applicable regime to environmentally
 displaced persons following an environmental disaster, mainly due to the broad
 formulation of the eligibility criteria and the absence of an exhaustive list as to who may
 fall under this legal regime.135             However, the directive establishes an exceptional
 procedure applicable only in “the event of a mass influx or imminent mass influx”, thus
 excluding from its scope those who are not part of such mass influx arriving in the E.U.
           Looking at the environmental side, the high level of protection and improvement
 of the quality of the environment and the sustainable development have been promoted
 as objectives of the E.U. (art. 3 of the T.F.E.U.). Also, after the entry into force of the 2009
 Lisbon Treaty, the Union’s action in these fields have been strengthened, through the
 inclusion of the fight against climate change, the promotion of the protection of the
 environment also for future generations (artt. 191-193 of the T.F.E.U.).136 In addition, art.
 11 of the T.F.E.U. requires the integration of environmental protection “into the
 definition and implementation of the Union’s policies and activities”.137 Furthermore,
 art. 37 of the E.C.H.F.R.138 defines the principle of environmental protection, requiring
 that to integrate a “high level of environmental protection” and “the improvement of
 the quality of the environment” extends, in principle, to all Union policies (internal and
 external); in other words, such principle should be integrated also in migration policies.
           Even the recent E.U. legislative proposals confirm the protection gap. Indeed, in
 2020 the European Commission presented two Communications aimed at addressing the
134
     Id. art. 2(d).
135
     Id. art. 2(a). See also Morgese, supra note 119, at 54-56.
136
    Consolidated Version of the Treaty on the Functioning of the European Union art. 191(1), May 9, 2008, 2008
    O.J. (C 115) 47 states that: “[T]he Union policy on the environment shall contribute to pursuit of [. . .]
    promoting measures at international level to deal with regional or worldwide environmental problems, and
    in particular combating climate change”.
137
    T.F.E.U. art. 11 states that “[t]he requirements of environmental protection must be integrated into the
    definition and implementation of the Union’s policies and activities, in particular with a view to promoting
    sustainable development”. On the issues concerning the justiciability of the principle enriched in TFEU art.
    11; Agata Cecilia Amato Mangiameli, Article 11, in 1 TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION – A
    COMMENTARY 299 (Hermann-Josef Blanke & Stelio Mangiameli eds., 2021).
138
    Charter Of The Fundamental Rights Of The European Union art. 37, Dec. 18, 2000, 2000 O.J. (C 364) 1 states
    that: “A high level of environmental protection and the improvement of the quality of the environment must
    be integrated into the policies of the Union and assured in accordance with the principle of sustainable
    development”. For an analysis of this article; see also Eloise Scotford, Environmental Rights and Principles:
    Investigating Article 37 of the EU Charter of Fundamental Rights, in ENVIRONMENTAL RIGHTS IN EUROPE AND BEYOND
    (Sanja Bogojević & Rosemary Rayfuse eds., 2018).


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 (possible) future adoption of legislative proposals tackling, on the one hand, migration
 and, on the other hand, climate change. Unfortunately, these Communications, albeit
 being adopted in the same time period, do not communicate with each other. On the one
 hand, the Communication on the E.U. Green Deal139 – which aims at achieving climate
 neutrality by 2050, does not address the issue of migration in any of its forms; on the
 other hand, the Communication on the New Pact on Migration and Asylum140 the
 purpose of which- is to integrate or reform the Common European Asylum System
 (C.E.A.S.) – does not mention climate change or environmental protection. The New Pact
 addresses the safety of refugees but does not mention the needs of climate-induced
 migrants and, above all, does not recognize climate stress as a ground to seek refugee
 status.141
            The E.U. undoubtedly plays a leading role in the fight against climate change, the
 promotion of environmental sustainability, and fuels the international discourse about the
 “green” transition. However, when it comes to environmental migration, the E.U. follows
 the international trend of preferring the use of soft law instruments.
 Indeed, the confirmation of the same inconsistencies arises again within the E.U.
 Commission conclusions at the C.O.P.27 in Sharm el-Sheikh. On that occasion, the
 Commission highlighted how


              the consequences of climate change are unevenly distributed around
              the world, since we have seen extreme weather events happen often
              in the most vulnerable countries.                   It is therefore crucial that
              developed countries help developing countries to become more
              resilient to extreme weather conditions [. . .] This is therefore our
              duty to support countries to adapt to and prevent the impacts of
              climate change, focusing on where the needs are most urgent.142




139
     See Commission Communication to the Europea Parliament, the European Council, the Council, the European Economic
    and Social Committee and the Committee of the Regions, The European Green Deal, COM(2019) 640 final (Dec. 11,
    2019).
140
    See Commission Communication on a New Pact on Migration and Asylum, COM (2020) 609 final (Sep. 23, 2020).
141
    See European Parliament, LIBE Committee, The Future of Climate Migration, Eamonn Noonan and ANA Rusu
    (March 2022), https://www.europarl.europa.eu/RegData/etudes/STUD/2020/655591/
    IPOL_STU(2020)655591_EN.pdf (last visited Dec. 6, 2022).
142
    See European Commission Press Release IP/22/6888, Team Europe Steps up Support for Climate Change
    Adaptation and Resilience in Africa Under Global Gateway (November 16, 2022).


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          CONCLUSIONS

 As the data continues to demonstrate, environmental migration is a constantly growing
 phenomenon that will not affect only the so-called future generations. On the contrary,
 the adverse effects of climate change and environmental degradation are currently
 perceived, highlighting how they undermine human rights and the necessity to protect
 the most affected ones. As a matter of fact, in a situation of environmental disaster, the
 primary responsibility to grant protection should be on the State of origin. As the U.N.
 Human Rights Committee’s decisions outlined, States have the obligation to ensure
 protection for their citizens and that people live life with dignity,143 through also the
 creation of tools to prevent, mitigate, adapt, and eventually manage internal and
 cross-borders climate-induced migration.
              Despite the lack of effective protection in the international legal framework and
 the proliferation of soft law acts recognizing the urgency to address environmental
 migration, the emerging supranational, but especially national case-law of E.U. Member
 States’ courts confirm the trend in tackling the lack of protection for environmental
 migrants through the incorporation of human rights in environmental cases, thus
 demonstrating the will to create an environmental migration awareness, on both the
 adverse effects of climate change and on the recognition of duties in environmental and
 human rights matters.
              Even if these national decisions dealt with the adverse effects of environmental
 degradation, the environmental factual aspects of the cases are different. In the French
 case, the environmental aspect of migration is associated with the severe air level of
 pollution in the country of origin, whereas in the Italian case, there is the exploitation of
 natural resources by oil companies and political instability.                     Despite the respective
 differences, these two cases highlight one of the main aspects of environmental
 migration: the multi-causality. Both these cases stress that the reasons behind the forced
 or voluntary decision to migrate are not only linked to environmental factors. There are
 other reasons and elements, such as political instability, poverty that affect, even the
 type of protection to guarantee. In addition, in these selected decisions the judges did
 not use the same legal remedies. On the one hand, in the French case, there was the
 request for a decision of deportation and, on the other, in the Italian case, the request for
 international protection. The Court of Bordeaux relied on the right to health and the
 inadequacy of the Bangladesh health system compared to the French one in treating his
 diseases and in overturning the deportation order; instead, the Italian Court fixed an

143
      See U.N. Human Rights Committee, views adopted, supra note 60, at 9.12 and 9.13.


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 extensive reading of the right to life in dealing with the request of international
 protection. Eventually, through the annulment of the deportation order in France and
 the recognition of national protection in Italy, the decisions of the Administrative Court
 of Bordeaux and the Italian Court of Cassation stressed the necessity – albeit the duty –
 to recognize alternative or parallel instruments of protection for environmental
 migrants.144
           The use of a broader interpretation of human rights by national courts – in
 particular the right to health, the right to life and to live with dignity– testifies to the
 international lack of protection, but also the international trend of filling such
 protection gaps through a human rights approach.
           Despite the political statements at the supranational level, it seems that quasi-
 judicial and judicial bodies represent the real promotion of an adaptation process of the
 law to the increasing human developments and necessities 145 – i.e., the growing number
 of climate litigation cases.146 Even if it will take time for judicial bodies to constitute a solid
 case law on this topic, the growing application of existing human rights law by national
 courts – and also the constant efforts of civil society groups – is pushing the environmental
 migration phenomenon in the spotlight.147 Thus, such judicial involvement is stressing
 the necessity to consider the wider range of issues 148 that affect those who migrate for
 environmental reasons when taking legal decisions on climate change and environmental
 matters.
           Environmental migrations, like other forms of migration, such as those due to
 living conditions that are objectively impossible, call for the implementation of a mighty,
 joint effort by the entire international community and supranational organizations, such
 as the E.U. The duty to cope with the massive flows with which they are invested cannot
 be borne solely by the, however limited, efforts of individual national courts.




144
    See Villani, supra note 43; Le Moli, supra note 58, at 26.
145
    See Perrini, supra note 68, at 350.
146
    See Villani, supra note 43; see also Le Moli, supra note 58.
147
    See Vona, supra note 100, at 148.
148
    See Jacqueline Pell & Hari M. Osofsky, A Rights Turn in Climate Change Litigation?, 7 TRANSNAT’L ENV’T L. 37
    (2018).


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