By Emily Hush, J.D. Candidate 2018, Columbia Law School
I want to extend my sincere thanks to Professor Michael B. Gerrard of Columbia Law School and Professor Matthew Scott of Lund University Faculty of Law for their invaluable assistance on this project. All errors are my own.
The displacement of persons due to environmental disasters exacerbated by climate change has already begun. The flow will continue to increase throughout the course of this century. Despite this growing population of migrants, the world has no legal framework in place for their reception and protection. Sweden and Finland used to provide some legal protection for those displaced by environmental catastrophes, but they rescinded these provisions last year in an exaggerated response to the refugee crisis. The EU already has a legal framework in place ready to accommodate such protections, in the Common European Asylum System. It stands as a global leader in climate change mitigation and adaptation and should build on this legacy by providing protection for those fleeing environmental disasters. The Qualification Directive could easily include such protection, based on either the Swedish or the Finnish model. Amending the Directive would demonstrate that the EU takes climate change and environmental displacement seriously, and that it will not surrender to fear or complacency.
II. Background: Environmental Displacement
For the purposes of this post, “environmental displacement” or “environmental migration” simply refers to the emigration of people from their home community due to environmental disaster. This may occur seasonally, temporarily, or permanently. The causes of environmental migration are legion – climate change alone cannot explain it. Rather, climate change exacerbates the rate and severity of certain natural disasters, combining with other drivers to cause diverse migration patterns. The warming climate causes water shortages, desertification, extreme weather, and sea-level rise, which in turn destroy livelihoods, crops, water supplies, and homes, leading to instability and displacement. Kelley et al. explain, for example, that the civil war in Syria was caused in part by a persistent drought that sparked a massive influx of people from the countryside into cities. This led to civil strife and ultimately the migration of millions of Syrians across the Mediterranean Sea to Europe.
Environmentally displaced persons are acutely at risk when they do migrate. Persons fleeing natural disasters do not qualify for protection as refugees under the 1951 Refugee Convention. Enacted after WWII, that Convention did not contemplate the modern reality of environmental migration. Article 1.A(2) defines a “refugee” as a person who:
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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
This definition has four components. Refugees are those (1) outside their country of origin and (2) unable or unwilling to be protected by that country due to (3) a well-founded fear of being persecuted on the basis of (4) race, religion, nationality, membership of a particular social group, or political opinion. While environmental migrants may meet the first three criteria, they fail to meet the fourth. Environmental catastrophes do not discriminate. As a consequence, environmental migrants face legal uncertainty whenever they cross borders.
The EU has failed to fill this legal gap, leaving environmentally displaced persons without legal protection. While most would agree that some protection should be provided to environmentally-displaced persons, few nations have passed laws to achieve that end. Finland and Sweden stood briefly among the few countries in the world that provided explicit statutory protection for persons fleeing environmental disasters. Unfortunately, as will be explained below, both countries recently repealed this protection.
III. One Step Forward: The Finnish and Swedish Aliens Acts
This section will analyze the Finnish and Swedish immigration laws as they existed before 2016, and will discuss the circumstances surrounding the repeals.
A. The Finnish Aliens Act 301:2004
The Finnish Aliens Act provides asylum for refugees and subsidiary protection, as mandated by European and international law. The asylum provision provides:
Aliens residing in the country are granted asylum if they reside outside their home country or country of permanent residence owing to a well-founded fear of being persecuted for reasons of ethnic origin, religion, nationality, membership in a particular social group or political opinion and if they, because of this fear, are unwilling to avail themselves of the protection of that country.
In addition to traditional refugee protection, subsidiary protection is available to persons not meeting the requirements for asylum, if:
substantial grounds have been shown for believing that the person, if returned to his or her country of origin or country of former habitual residence, would face a real risk of being subjected to serious harm, and he or she is unable, or owing to such risk, unwilling to avail him or herself of the protection of that country.
Under subsidiary protection, “serious harm” is narrowly defined as the death penalty, execution, torture or other inhuman or degrading treatment or punishment, or a serious and individual threat as a result of indiscriminate violence in situations of international or internal armed conflicts. This definition clearly does not include harm caused by environmental disasters. In expanding its laws to include protection for environmental migrants, the Finnish Aliens Act did not change the conventional definition of a refugee or change its subsidiary protections. Instead, it added a new category called “humanitarian protection.” The relevant article provided:
An alien residing in Finland is issued with a residence permit on the basis of humanitarian protection, if there are no grounds under section 87 or 88 for granting asylum or providing subsidiary protection, but he or she cannot return to his or her country of origin or country of former habitual residence as a result of an environmental catastrophe or a bad security situation which may be due to an international or internal armed conflict or a poor human rights situation.
Therefore, a person who did not meet the grounds for either asylum or subsidiary protection could still obtain a Finnish resident permit if an environmental catastrophe prevented him or her from returning home. The terms “environmental catastrophe” and “cannot return” were not defined in the Act. The permit provided would have been a “continuous resident permit” that could be extended to family members.
Finland provided one other category of protection for groups of environmentally displaced persons, as recognized by the Finnish government. Under Section 109 of the Act, temporary protection is available to:
aliens who need international protection and who cannot return safely to their home country or country of permanent residence, because there has been a massive displacement of people in the country or its neighbouring areas as a result of an armed conflict, some other violent situation or an environmental disaster.
B. Swedish Aliens Act 2005:716
Like the Finnish Act, the Swedish Aliens Act offers both asylum and subsidiary protection (also known in Sweden as “alternative protection”). Before 2014, protection for persons fleeing environmental disasters was incorporated into subsidiary protection. However, a later version of the Act created a separate category of protection called “other protection needs,” in a structure reminiscent of the Finnish Act. Thus, under the 2016 version of the Act, a person qualifying for other protection was an alien who, under circumstances falling outside the scope of either asylum or subsidiary protection, is outside his or her country of origin, because he or she (1) needs protection because of an external or internal armed conflict in the home country and feels a well-founded fear of serious abuse, or (2) cannot return to his or her home country due to an environmental disaster.
These “persons otherwise in need of protection” and their family members were entitled to a residence permit. The Swedish law, unlike the Finnish, was subject to some limitations in practice. Legislative materials limited the scope of “environmental disaster” to sudden-onset disasters (the provision was originally intended for catastrophes like Chernobyl). It would not have covered slow-onset environmental disasters. In addition, a displaced person could only invoke its protection if he or she could not migrate within the borders of the country of origin.
IV. Two Steps Back: Repealing the Finnish and Swedish Aliens Acts
These Nordic laws, pioneering and generous, seemed like ideal models for the world to follow. That is, until the refugee crisis erupted. Beginning in 2014, Europe faced the greatest influx of immigration since WWII, with over 1 million entering the region in 2015. Europe’s progressive immigration policies shook under the pressure, and Member States raised their borders in defiance of the usual absence of border checks in the Schengen Area. Finland and Sweden began to doubt the wisdom of their brave policies and retreated.
Finland’s Parliament repealed its humanitarian protection provisions in the spring of 2016. Essentially, the repeal struck every mention of humanitarian protection from the Act. It impacted both pending and granted applications. Persons who had already received residence permits on humanitarian grounds could only remain in Finland if they had some other basis for remaining, such as studies or work. Temporary protection under Article 109 was not repealed.
Sweden instituted a temporary repeal instead, in effect from July 20, 2016 to July 19, 2019. Under this temporary rollback, persons otherwise in need of protection (including environmental migrants) no longer have any right to a residence permit, while persons accorded refugee or alternative protection status are eligible only for temporary residence permits.
The two countries wanted to revert to the minimum protection mandated by EU law, for fear of receiving a disproportionate number of refugees compared to other Member States, especially in the wake of massive number that entered the EU in 2015.
V. A Common European Solution
The main driver behind the Finnish and Swedish repeals was a (selfish) sense of fairness. They raised the timeless protest of the playground: you first! If the progressive Nordic countries take up this vein, it’s unlikely that any other Member States will venture to provide more than the EU-mandated minimum protection. A uniform EU policy for environmentally-displaced persons would avoid the race to the bottom and forum-shopping, resolve fairness concerns, and provide protection for this growing migrant population.
A. The Policy Basis for a European Solution
The Refugee Convention fails to provide a solution for our modern problem. The authors of the Convention knew nothing of climate change and could not have foreseen its impacts. Today, we know that climate change causes displacement and that it will worsen. We must design a new solution to this new problem.
Scholars across the globe have offered plausible solutions. Some have suggested revising the Refugee Convention. However, this would entail enormous transaction costs and would be intensely time-consuming. In addition, it would be conceptually problematic, because environmental migrants still enjoy the protection of their home country, whereas refugee law assumes that the displaced face persecution from their country. A new multilateral convention or treaty could provide a workable framework, but such a large project would suffer from the same transaction costs and political intrigue as a revision of the Refugee Convention. While some have advocated the adoption of nonbinding principles, agreeing on the scope and content of such principles would present considerable difficulties. Some scholars have proposed agreements under the auspices of the UNFCCC or other UN bodies. This is a promising option, and one that has already been explored.
The reasons supporting a UN solution also reveal the advantages of a common European policy. Generating an agreement under the umbrella of an existing coalition lessens transactional costs. Targeting a single region limits the scope of the agreement, making it easier to reach consensus and allowing the parties to build on existing local, regional, and national legislation and practices. Regional agreements can be concluded more swiftly and provide more effective outcomes.
The EU provides an excellent forum for such agreements, because the legal union between the Member States is already well-established and well-organized. The EU constantly issues “regional agreements” in the form of Directives and Regulations that the Member States respect and implement. Although the pending Brexit demonstrates that the EU is not invulnerable to change and dissension, still it encompasses 28 (soon to be 27) Member States who together constitute a strong political force. The following section will demonstrate that the European legal system is well equipped to deal with the challenge.
B. The Legal Basis for a European Solution
The Treaties and general principles of EU law support the creation of a common EU policy for environmentally displaced persons.
First, the European Union has the competence to take action in this sphere. The Union derives its powers from the principle of conferral. This principle holds that the EU may only act within the powers conferred upon it by the Member States through the Treaties. Under the Lisbon Treaty, the EU has competence to regulate immigration and asylum policy across the Union. This mandate is broad enough to encompass environmental displacement. Article 3 of the Treaty on the European Union (“TEU”) provides:
The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.
Similarly, Article 67 of the Treaty on the Functioning of the European Union (“TFEU”) provides that the Union:
shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals.
This common immigration policy ensures the “efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.” The Treaty provides that the EU will adopt measures including conditions of entry and residence, and standards for the issuance of residence permits.
The principle of subsidiarity reinforces the conclusion that the rights of environmentally displaced persons, like those of refugees, should be governed at the EU level. Immigration and asylum policy is a competence shared between the EU and the Member States. Under the principle of subsidiarity, the EU will act in areas of shared competence:
only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
This means that the EU may take action on immigration policy if it can better achieve its immigration objectives at the regional level. The EU already found that the Member States cannot effectively regulate international protection in its Qualification Directive. Clear policy reasons support this finding and the Finnish and Swedish repeals demonstrate the insuperable obstacles to regulating immigration at the national level. The existence of divergent immigration standards across the Union creates unmanageable conditions. It complicates the law, creating legal uncertainty, and it increases tension between Member States, destabilizing the Union.
Finally, existing immigration legislation may logically be interpreted to support a common European policy on environmentally displaced persons. The Preamble of the Qualification Directive reaffirms the EU’s “objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Union.” Although the provision currently refers to refugees, the phrase “forced by circumstances” reasonably supports a broader interpretation encompassing environmental disasters. Recital 6 affirms the importance of subsidiary protection and recital 10 confirms the EU’s intention of seeking higher standards as it increases uniformity across the Union. While Recital 15 currently excludes persons seeking protection on compassionate or humanitarian grounds from the scope of the Directive, the EU could amend the Directive to encompass those applicants.
Europe has the most advanced immigration protection regime in the world. It has grown and developed through the EU’s drive for uniformity and integration. The EU must include protection for environmentally displaced persons within its framework.
C. A Model EU Provision Protecting Environmentally Displaced Persons
The EU lays out its common immigration and asylum policy in the Qualification Directive and in the Temporary Protection Directive. This post proposes two alternative amendments to the Qualification Directive, based on Finnish and Swedish law, respectively. Although I focus on the Qualification Directive, any amendments made to the latter should be accompanied by supporting changes in the Temporary Protection Directive. In addition, the EU should develop a system of seasonal work permits that would allow persons whose livelihood is threatened or even wiped out by climate change impacts on a seasonal basis to seek work in the EU during those periods. This seasonal system would reduce any stress on the temporary and permanent residence systems by encouraging migrants to seek protection only for the minimum amount of time needed.
The 2004 Qualification Directive currently incorporates the Refugee Convention’s definition of “refugee” and provides subsidiary protection. A person eligible for subsidiary status 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 is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.
1. The Swedish Model
The Swedish model I propose would be based on the earlier version of the Swedish Aliens Act, which included environmental migrants within the scope subsidiary protection. It would likely prove most palatable politically, because it involves the fewest changes to existing law. As noted above, the Qualification Directive excludes applicants seeking protection on compassionate or humanitarian grounds. The Swedish model obviates any need to change this approach, because it extends protection to environmentally displaced persons by expanding the scope of subsidiary protection.
Currently, the Qualification Directive extends protection to persons when “substantial grounds have been shown for believing that” they are unable to return home due to a “real risk of suffering serious harm,” where “serious harm” means “(a) the death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.” I propose amending this article to include a simple, new subparagraph (d): “environmental catastrophe.”
To avoid the limitations placed upon the law by the Swedish legislature, the Directive should define “environmental catastrophe.” For example, it could be defined as “a natural disaster affecting a large number of persons in a geographic area, occurring either suddenly or over time, with or without human action, and causing the destruction, or reasonable threat of destruction, or severe degradation of, the applicant’s livelihood, residence, community, or land.” This definition encompasses past and future harm, slow- and rapid-onset disasters, and varying, but equally crippling, impacts. It would allow immigration authorities to take environmental causes of displacement into consideration in a broad range of circumstances, and would avoid judgments between so-called voluntary and involuntary migrants. The provision would be subject to the EU’s interpretation of “real risk of suffering serious harm,” and of “substantial grounds,” and to existing case law on whether belief is subjective or objective.
2. The Finnish Model
Under the Finnish model, I would propose adding an Article 15a to the Directive as follows:
‘person eligible for humanitarian protection’ means a third country national or a stateless person who does not qualify as a refugee or person eligible for subsidiary protection but in respect of whom substantial grounds have been shown for believing that the person concerned cannot return to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, as a result of an environmental catastrophe, and to whom Article 17(1) and (2) does not apply, and is unable, or, owing to such catastrophe, unwilling to avail himself or herself of the protection of that country.
“Environmental catastrophe” would have the same definition as under the Swedish model. The Finnish model has the advantage of emphasizing this pathway to residency by placing it in a separate article. This could mitigate difficulties that were encountered in Sweden, where practitioners were either unaware of the provision or expressed reluctance in using it. However, it requires adding a new category of protection, which would likely spark greater political resistance. Like the Swedish model, it would require defining “substantial grounds” and confirming whether belief is subjective or objective.
International displacement due to environmental catastrophes has already begun and will continue to increase in severity and scope over the course of this century and beyond. Major world leaders like the European Union must take pre-emptive action to ensure that environmentally displaced persons receive adequate protection when they arrive on foreign shores. Member States will likely continue to refuse to act unilaterally because they do not want to expose themselves to the financial, administrative, and cultural costs of receiving more refugees than their neighbours. Those nations that do not provide additional protection will resent those who do, because once a migrant enters one Member State, he or she can move freely inside the Schengen area.
The best solution to these inequalities is for the European Union to amend the Qualification Directive to expressly provide protection for environmentally-displaced persons. The most viable model finds its inspiration in the early Swedish expansion of subsidiary protection. By adopting this model, the EU would set a commendable example of legal action and reinforce its reputation as a global human rights leader, while providing needed protection to the increasing numbers of people displaced by environmental catastrophes.
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