Nikolas Keckhut, Master’s student, University of Strasbourg – Jagiellonian University

Although the issue of environmental migration is struggling to move beyond public debate and into the legal sphere, it has surprisingly made its way into the European Parliament’s debates on the revision of the Qualification Directive. The latter is the main European instrument for international protection, i.e. refugee status and subsidiary protection (Art. 2(a) of the Directive). Its revision, which ran from 2017 to 2024, took place in the aftermath of the so-called ‘migration crisis’ and the adoption of the Paris Agreement in 2015. Inspired by pre-existing models, three main lines of proposals were put forward during discussions within the Committee on Civil Liberties, Justice and Home Affairs (LIBE). This post will illustrate these proposals and assess the outcome of the debate, arguing that promising proposals have been put forward by legislative actors, and that the ultimate failure of any progress is above all a political failure rather than a legal one.

LIBE Committee proposals 

The first proposal, coming from the members of the Greens, suggested that Member States of the European Union (EU) should be encouraged to develop their own legislation on the issue of environmental migration. While this had the merit of including environmental migration in a key text of the European asylum system, it merely reproduced an essential component of the Common European Asylum System (CEAS) authorising ‘other national humanitarian statuses’ (Proposal for a Qualification Regulation, Art 3). Thus, such a measure, if adopted, would not have improved protection, besides being a mere encouragement and not a binding provision.

Secondly, the rapporteur (Socialists & Democrats) and other left-wing Members of the European Parliament (MEP) tabled amendments proposing that the concept of ‘public order’ within the third subsidiary protection should include situations of environmental disaster. Those amendments were inspired from the African Union’s Refugee Convention, which creates an ‘extended refugee definition’ at Article 1(2) by adding ‘public order’ to the criteria set out in the Geneva Convention on Refugees. Although never used for environmental reasons, a broad interpretation of the concept of ‘public order’ could theoretically enable the inclusion of environmental issues, thus providing a viable option. 

Finally, a third proposal originated from a more heterogeneous coalition. It proposed the introduction of an ad hoc humanitarian protection extended to disaster situations as part of a new configuration of the subsidiary protection regime. This proposal was inspired by the Scandinavian model of protection, developed in the 2000s (in particular, the Swedish Aliens Act, Chapter 4, Section 2 and the Finish Alien Act, Section 109), and abolished in the wake of the ‘migration crisis’. However, the Finnish and Swedish examples demonstrate limited effectiveness and application of this type of protection in practice, despite a fairly explicit text. On the other hand, Denmark, which did not explicitly mention environmental disasters, is the only Scandinavian country to have used its humanitarian protection for these purposes. However, it is conceivable that such a development in EU law would not have gone unnoticed and that the repercussions of such a step forward would have been observed by the public opinion and by the European courts. This latest proposal addresses the concerns raised by the two previous ones. It combines the provision of genuine, effective protection with a clear formulation of the issue of natural disasters.

The political failure to address environmental migration

The amendments made by LIBE Committee were politically ambitious, and nearly all failed during the final votes. Two amendments survived the Committee stage and appeared in the final report presented in 2017, but were eventually withdrawn during negotiations with the Council and the Commission. 

This failure shows how EU policies reinforce the construction of a ‘fortress Europe’ rather than a welcoming land for asylum seekers. Indeed, reflecting the composition of the European Parliament, the LIBE Committee’s centre of political gravity was rather to the right; and it was clear from the beginning that the right-wing of the Committee would oppose any progress on the issue of environmental migration. This refusal to open any new grounds for asylum illustrates the reluctance of political climate to facilitating access to asylum. On this premise, the Greens realised the danger of reopening negotiations on asylum grounds, which could in fact lead to a reduction in international protection standards rather than progressive improvements. This retreat, while understandable, is not new. As far back as 2008, Chloé Vlassopoulou explained that the response most often given to the ‘denial of the agenda’ from which the issue of environmental migration suffers is that those responsible for applying the Geneva Convention are opposed to such recognition for fear of seeing respect for the right of asylum weakened.

A second reason for the failure is the consensus culture that prevails within the European institutions. While desirable in certain areas, it can prove to be a brake on ambitious policies where consensus is hard to achieve. Here, the reform of the Qualification Directive was part of the general context of the reform of the CEAS. With several texts being discussed in parallel and many matters being balanced in the political bargaining, there was a risk that passing this measure here would mean other measures be opposed in other texts. The strategy of certain groups (in this case, S&D) seems to have been to seek more consensual measures to avoid political battles that could jeopardise the progress of the general reform, judged necessary. Indeed, the Greens, like the Social Democrats, have admitted the more or less declarative nature of their amendments. This raises the question of whether these are nothing more than bargaining tools; however, there seems to be a genuine strategy behind these proposals. For the Rapporteur’s team, the aim was rather to indicate the long-term direction to be taken in terms of asylum policy. For the Greens, the ambition lies elsewhere. In their view, an ad hoc instrument should be developed to fully address the issue, and any smaller breakthrough could jeopardise the existence of such an instrument. In fact, the Greens are still advocating this in their manifesto for the 2024 European elections.

Is it really a failure?

Despite the apparent failure to address the issue in the new Directive, these proposed amendments have at least had the merit of reopening discussions on the subject. They allowed the balance of power to be gauged and, with a more favourable political balance, to envisage legislation that would be more favourable to the protection of environmentally displaced people. A key lesson to be learned from this failure is the difficulty of assimilating climate change-induced migration with international protection. Indeed, if climate change is claiming victims, environmentally displaced people remain a distant reality in terms of time and geography. Under these conditions, the development of legislation on international protection for climate-displaced persons seems compromised amid inaction threatening the human rights of displaced persons.