Non-refoulement – Climate and Human Rights Litigation Database

Summary:

In the case of I.L. v. Italian Ministry of the Interior and the Attorney General at the Court of Appeal of Ancona, decided on 24 February 2021 by the Supreme Court of Cassation in Italy, a significant precedent was established in humanitarian asylum cases. The decision mandated that Italian trial judges should collectively assess situations of environmental, social, or climate degradation when evaluating eligibility for humanitarian protection, in addition to considering situations of armed conflict. The case involved a Nigerian citizen, I.L., who sought refuge in Italy, primarily due to armed paramilitary conflict in the Niger Delta region that was being exacerbated by environmental degradation, particularly numerous oil spills.

Claim:

The applicant claimed that the lower courts committed a prejudicial error by not taking into account the environmental disaster situation in the Niger Delta as a basis for humanitarian protection. He argued that the trial judge’s decision violated Legislative Decree No. 286/1998, known as the Consolidated Immigration Act, by failing to extend humanitarian protection based on the environmental disaster in his home region. The central issue at hand was to ascertain whether individuals facing a real threat to their right to life in their country of origin, due to adverse social, environmental, and climate circumstances rather than armed conflict, should be granted humanitarian protection.

Decision:

The Supreme Court of Cassation accepted the applicant’s appeal and remanded the case back to the Court of Ancona. The Court found that the applicant’s two grounds for appeal were well-founded. It recognized the existence of severe environmental instability in the Niger Delta, resulting from indiscriminate exploitation by oil companies and ethnic-political conflicts. The trial judge’s failure to consider the environmental context and widespread insecurity when assessing humanitarian protection eligibility was seen as an error.

The Court’s decision drew on international legal precedent, including the Teitiota decision from the United Nations Human Rights Committee, which recognized that environmental degradation could hinder the right to life when a state is unable or unwilling to ensure ‘access to essential natural resources, such as arable land and drinking water’. The Court’s key findings and instructions are as follows:

When assessing humanitarian protection, the evaluation of widespread dangerous conditions in the applicant’s country of origin should consider specific risks to the right to life and dignified existence arising from environmental degradation, climate change, or unsustainable development of the area.
Danger to an individual’s life can depend on socio-environmental conditions, not solely armed conflict. Such socio-environmental factors include human action that seriously jeopardizes an individual’s survival and that of their relatives.
Trial judges are instructed to establish an ‘essential level’ below which decent living conditions are not present and the fundamental right to life is not ensured. The judge must then verify the effective assurance of this minimum threshold, which should encompass both armed conflict and other circumstances that pose a serious risk to the individual and their family’s survival, such as social, environmental, or climatic degradation or unsustainable exploitation of natural resources.
The Court determined that if the situation in the country of origin does not allow for a minimum guarantee of the right to life, humanitarian protection should be granted. Importantly, this assessment now includes environmental and climatic factors influencing an individual’s decision to leave their home.

Links:

The case documents are accessible via Climate Case Chart: Click here.

Status of the case:

Judgment of the Supreme Court of Cassation – Second Civil Section

Suggested citation:

I.L. v. Italian Ministry of the Interior and Attorney General at the Court of Appeal of Ancona, Supreme Court of Cassation, N. 5022/2021, 24 February 2021.

Last updated:

03 November 2023.

Summary:

The applicant submitted that New Zealand had violated his right to life under the ICCPR by removing him to Kiribati, an island state where, he submitted, the situation was becoming increasingly unstable and precarious due to sea level rise caused by global warming. The HRC accepted the claim that sea level rise and climate change-related harms can trigger non-refoulement obligations, but found that there is still time to take measures to protect the population of Kiribati.

Admissibility:

Concerning the imminence of the risk faced, the Committee noted that the author was not alleging a hypothetical future harm, but a real predicament caused by a lack of potable water and employment possibilities, and a threat of serious violence caused by land disputes. The author had sufficiently demonstrated, for the purpose of admissibility, the existence of a real risk of harm to his right to life, given the impact of climate change and associated sea level rise on the habitability of Kiribati and on the security situation on the islands.

Merits:

The HRC found that environmental degradation can compromise the effective enjoyment of the right to life, and if severe it can violate that right. The Committee accepted the author’s claim that sea level rise is likely to render Kiribati uninhabitable. Without robust national and international efforts, the effects of climate change in receiving States may expose individuals to a violation of articles 6 or 7 ICCPR, thereby triggering the non-refoulement obligations of sending States. However, it noted that the time frame of 10 to 15 years, as suggested by the author, could allow for intervening acts by Kiribati, with the assistance of the international community, to take affirmative measures to protect and, where necessary, relocate its population.

Remedies ordered:

None

Separate opinions:

Yes

Implementation measures taken:

N/A

Date:

24 October 2019

Status of case:

final

Suggested case citation:

Human Rights Committee, Ioane Teitiota v. New Zealand, No. 2728/2016, Communication of 24 October 2019.

Full text:

For the full-text of the decision in the case, click here.

Further reading:

Adaena Sinclair-Blakemore, ‘Teitiota v New Zealand: A Step Forward in the Protection of Climate Refugees under International Human Rights Law?’ Oxford Human Rights Hub, 28th January 2020, available here.

Keywords:

climate refugees, affectedness, non-refoulement