11. The Role of Complementary Protection

In this regard, see as a matter of example Cooper. With the aim of adapting the 1951 Geneva Convention on Refugees to the spirit of the Universal Declaration of Human Rights, in particular where it establishes that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family […]” (Article 25), Cooper proposes a new definition of “refugee” which covers so-called environmental refugees too: “[…] anyone in justified fear of being persecuted for his race, his religion, his citizenship, his membership of a particular social group or his political opinions […] “or victim” of degraded environmental conditions that threaten his life, his health, his livelihoods or the use of natural resources”. Cooper (1998). Environmental Refugees: Meeting the Requirements of the Refugee Definition. New York University Environmental Law Journal, 6.

Spijkerboer (2002). Subsidiarity in Asylum Law: The Personal Scope of International Protection. In Bouteillet-Pacquet (Ed.), Subsidiary Protection of Refugees inthe European Union: Complementing the Geneva Convention? Brussels: Bruylant, pp. 19 ff.

See McAdam (2011). Climate Change Displacement and International Law: Complementary Protection Standards. UNHCR Legal and Protection Policy Research Series, doc. PPLA/2011/03. https://​www.​unhcr.​org/​4dff16e99.​pdf. Accessed 10 February 2018. See also McAdam (2007). Complementary Protection in International Refugee Law. Oxford: Oxford University Press. Goodwin-Gill (1986). Non-refoulement and the New Asylum Seekers. Virginia Journal of International Law, 1986, pp. 897 ff.

Universal Declaration of Human Rights, adopted on 10 December 1948, Article 3 “Everyone has theright to life, liberty and the security of person”.

International Covenant on Civil and Political Rights, adopted 16 December 1966, entered into force 23 March 1976., Article 6: “Every human being has the inherentright to life. This right shall be protected bylaw. No one shall be arbitrarily deprived of hislife”.

Convention on the Rights of the Child, adopted on 20 November 1989, Article 6: “States Parties recognize that every child has the inherentright to life”.

Article 2 of the European Convention on Human Rights; Article 2 of the American Convention on Human Rights; Article 4 of the African Charter on Human and Peoples Rights; Article 4 of the Arab Charter on Human Rights.

See in this regard the activity of the UN Human Rights Committee (HRC) (2004). General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, para. 12. https://​www.​refworld.​org/​docid/​478b26ae2.​html. Accessed 20 March 2020. See also UN Committee on the Rights of the Child (CRC) (2005). General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, para. 27. https://​www.​refworld.​org/​docid/​42dd174b4.​html. Accessed 12 February 2020.

ICCPR, Article 7: “No one shall be subjected totortureor to cruel,inhuman or degrading treatmentorpunishment. In particular, no one shall be subjected without his free consent to medical orscientificexperimentation”.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 December 1984, entered into force 26 June 1987, Article 3: “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected totorture”.

UN Commission on Human Rights (2015). Human Rights Resolution 2005/16: Human Rights and Extreme Poverty (E/CN.4/RES/2005/16), para. 1b. https://​www.​refworld.​org/​docid/​45377c340.​html. Accessed 10 March 2020.

UN Human Rights Committee (2006). Aalbersberg et al. v. Netherlands. Communication No. 1440/2005, UN Doc. CCPR/C/87/D/1440/2005, para. 6.3. http://​hrlibrary.​umn.​edu/​undocs/​1440-2005.​html. Accessed 10 January 2020.

See Directive 2011/95/UE (Qualification Directive), Art. 15. Pursuant to this provision, international protection is to be granted to individuals who, in case of refoulement, face the risk of being sentenced to death, torture or inhuman or degrading treatment, or that face serious life-threat resulting from indiscriminate violence in situations of internal or international armed conflicts. Refer also to Directive 2013/33/UE; Directive 2013/32/UE; and Directive 2001/55/CE. On the EUasylum system, see ex multis Celle (2011). The Right of Asylum: Toward a Common European System. Impact on the Mediterranean Area. In Bottaro Palumbo & Danisi (Eds.), Civil Rights Protection and the Rights of Migrants in the Framework of the Mediterranean Cooperation. Genoa: Genova University Press. See also Munari (2016). The Perfect Storm on EU Asylum Law: The Need to Rethink the Dublin Regime. Diritti Umani e Diritto Internazionale, pp. 517 ff.

An ECHR Article 2 violation in a refoulement case has been ascertained in only one case, but always in conjunction with Article 3: see European Court of Human Rights, Bader and Kanbor v.Sweden, Application No. 13284/04, 8 November 2005.

European Court of Human Rights, Söring v.United Kingdom, Application No. 14038/88, 7 July 1989.

European Court of Human Rights, Pretty v.United Kingdom, Application No. 2346/02, 29 April 2002, para. 52.

Ibid.

European Court of Human Rights, N v.United Kingdom, Application No. 26565/06, 27 May 2008, para. 29. See also Paposhvili v. Belgium, Application No. 41738/10, 13 December 2016, para. 183.

England and Wales Court of Appeal, N v.Secretary of Statefor the Home Department, Case No. C4/2004/0669, 5 August 2004.Civ. 1369, 2003, paras. 38–40.

European Court of Human Rights, MSS v. Belgium &Greece, Application No. 30696/09, 21 January 2011, paras. 252–254.

European Court of Human Rights, Sufi & Elmi v.United Kingdom, Applications No. 8319/07 and 11449/07, 28 June 2011, para. 282.

In this sense, see also UNHCR (2003). Guidelines on International Protection: “Internal Flight or Relocation Alternative” Within the Context of Article 1A(2) of the 1951 Refugee Convention and/or 1957 Protocol Relating to the Status of Refugees. UN Doc HCR/GIP/03/04, para. 29. https://​www.​unhcr.​org/​publications/​legal/​3f28d5cd4/​guidelines-international-protection-4-internal-flight-relocation-alternative.​html. Accessed 13 June 2019.

See in this sense also European Court of Human Rights, F v.United Kingdom, Application No. 17341/04, 22 June 2004.

Cf. Foster (2007). International Refugee Law and Socio-Economic Rights: Refugee from Deprivation. Cambridge: Cambridge University Press.

See New ZealandImmigration and Protection Tribunal, Decision No. [2014] NZIPT 501370-371. https://​www.​refworld.​org/​pdfid/​585152d14.​pdf. Accessed 13 July 2018.

The Immigration and Protection Tribunal (NZIPT) replaced the Refugee Status Appeals Authority (RSAA) in actuation of 2009 New Zealand’s Immigration Act.

2009 New ZealandImmigration Act, section 207: “The Tribunal must allow an appeal againstliabilityfor deportation onhumanitariangrounds only where it is satisfied that, a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and b) it would not in all the circumstances be contrary to thepublicinterest to allow the appellant to remain in New Zealand”.

Ibid., paras. 31, 32 and 33.

In the Italian context, please refer to a Bologna Court of Appeal decision of February 2016, which confirmed the first instance judgment that recognized a right to humanitarianprotection to a Pakistani citizen suffering from frequent environmental disasters in his origin country. The Court of Appeal, after having underlined that there is to date no exhaustive and exhaustive list of the humanitarian reasons that allow the guarantee of a residence permit, and that these have therefore to be assessed case by case by competent courts (that must consider all relevant elements), established that “nel caso di specie la particolare situazione dell’appellato, vittima di eventi alluvionali che lo hanno privato di ogni bene materiale e di ogni affetto nel paese di provenienza dove non è neppure possibile il ricorso alle autorità locali, sia meritevole della misura della protezione umanitaria”. Cf. Corte di Appello di Bologna, 19 February 2016 (N° 524/2016).

See Aliens Act Sweden (2005), chap. 4, sec. 2a: “In this Act, a ‘person otherwise in need of protection’ is an alien who in cases other than those referred to in Sections 1 and 2 is outside the country of the alien’s nationality, because he or she […] 2. is unable to return to the country of origin because of an environmental disaster”.

It is necessary to underline that internal law cannot in any case have any impact, if not at a comparative level, on Australian or New Zealand law and, therefore, on those legal systems that more than any other have to face the challenge of migrations originating from insular micro-states. In this terms, and with reference to Swedish Law and the OUA Convention for instance, has expressed itself the RRTA: “While it may be true that these developments have occurred elsewhere in consideration of human flight, the Tribunal is bound to apply the law as it currently stands in Australia”. See Decision No. 0907346 [2009] RRTA 1168, 10 December 2009, para. 53. https://​www.​refworld.​org/​pdfid/​4b8fdd952.​pdf. Accessed 12 June 2017.

Aliens Act Finland (301/2004).

Decreto nr. 616/2010, Boletìn Oficial de la RepublicaArgentina nr. 31.898 (6 May 2010), Aricle 24.

A brief reference to the USTemporary Protection Status (TPS) mechanisms is useful. The TPS allows the Attorney General to activate protection measures for the citizens of a foreign country that is subject to a natural disaster. The TPS system grants facilitated access to labor market and impedes temporarily (for a period of 6 up to 16 months, that is however extendable) the repatriation of the citizens of the elected country that were already present on the territory of the United States at the time of the activation of the mechanism. What is interesting is that assistance is granted depending on the objective conditions of the origin country and not on the individual situation of the person. For further information, see Sighetti, Ester, & Wasem (2015). Temporary Protected Status: Current Immigration Policy and Issues, Congressional Research Service. https://​www.​everycrsreport.​com/​files/​20150902_​RS20844_​9baedc8b7abaf466​36f8ba4a179e745d​9940a60a.​pdf. Accessed 10 April 2019. See also Sciaccaluga (2017). Sudden-Onset Disasters, Human Displacement, and the Temporary Protection Directive: Space for a Promising Relationship? In Bruno, Palombino, & Rossi (Eds.), Migration and the Environment: Some Reflections on Current Legal Issues and Possible Ways Forward. Rome: CNR Edizioni, pp. 75 ff.

See, for instance, Xing-Yin Ni (2005) (op. cit.), p. 357: “Whether refugeeprotection could actually be stretched far enough to apply to climate-induced migrants, however, has yet to be seen. A sudden-onset natural disaster may trigger protection under Swedish law or qualify as a circumstance ‘seriously disturbing publicorder’ under one of the regional treaties. An asylumseeker fleeing a slow-onset phenomenon, however, such as the sea-level rise in Kiribati, would be unlikely to meet even an expanded definition of refugee”.