“The ineliminable core constituting the base of personal dignity”: the road-map for the protection of people fleeing the effects of climate change?
Court of Cassation (Italy) - Vulnerability - Environmental Disaster - Climate Change - Humanitarian Protection.
In the ordinance no. 5022/2021, the Italian Court of Cassation has established the principle of law that trial judges should follow whilst evaluating the presence of serious threats in cases of repatriation to the country of origin, and the consequent vulnerability, that legitimates the need for humanitarian protection. Starting from the principles affirmed by the United Nations Human Rights Committee in the renowned case Ioane Teitiota v. New Zealand, the Court of Cassation establishes that “the ineliminable core constituting the base of personal dignity” represents the basic limit below which the right to life and the right to decent living conditions are not ensured. This limit must not be passed in the case of armed conflict as well as when there is a context that in concreto puts at risk of being breached (or going below the above-mentioned minimum threshold) the fundamental right to life and the paramount principles of freedom and self-determination, including situations of social, environmental or climate degradations, climate changes or the unsustainable exploitation of natural resources.
A. Facts and Ruling
On November 12th 2020 the Second Civil Chamber of the Italian Court of Cassation (Seconda Sezione Civile, Corte di Cassazione) by way of ordinance no. 5022/2021 upheld the appeal against the decision of the court (Tribunale di Ancona) that had declined to recognize humanitarian protection to an applicant on the basis of the situation of environmental degradation in the country of origin. The applicant came from the Niger Delta, in Nigeria. This area is characterized by environmental degradation caused by oil exploitation – carried out mainly by Western companies – and by long-lasting ethnic and political conflicts.
In its decision, the Tribunal of Ancona had acknowledged the complexities and the instabilities of the Niger Delta, and the fact that situation could be subsumed to an environmental. Various paramilitary groups operate in the area, and sabotages and thefts to oil infrastructures have led to numerous oil spills which result in contamination of the soil. In addition, the population lives in extreme poverty – not benefiting of the natural resources of the area – and there is a high level of insecurity due to sabotages, damages, attacks, kidnapping and widespread acts of violence, carried out against the police as well. Notwithstanding, the Tribunal established that this situation did not amount to generalized violence, relevant to the recognition of subsidiary protection, due to the fact that it is not an armed conflict or an equivalent situation. Moreover, the Tribunal did not take into account the possibility of recognizing humanitarian protection in light of the environmental degradation and the widespread insecurity of Niger Delta.
Based on this latter point, the Court of Cassation developed its reasoning and affirmed an important principle of law that must be followed by the Tribunal of Ancona, with a different composition, when it issues a new decision on the case at stake, but which also represents a step forward in the field of the protection of people fleeing the effects of environmental degradation and climate change.
Starting from the principles established by the United Nations Human Rights Committee (hereinafter the UN Committee) in the renowned case Ioane Teitiota v. New Zealand, the Court of Cassation widened the grounds that breach the right to life and the right to an existence with dignity. Therefore, the Court established that the trial judge, whilst evaluating the presence of serious threats in cases of repatriation to the country of origin and the consequent vulnerability that legitimates the need for humanitarian protection, should consider that environmental degradation, climate change and unsustainable development could hinder the enjoyment of the right to life and to the right to an existence with dignity. The Court of Cassation specified that besides armed conflicts, social and environmental conditions could also endanger human life and breach the right to life and the principles of freedom and self-determination or, in any case, restrict them beyond the threshold of their core significance. To this end, the Court of Cassation established the criterion that should be followed by the trial judge: “the ineliminable core constituting the base of personal dignity” represents the basic limit below which the right to life and the right to decent living conditions are not ensured. Thus, this limit must not be exceeded in the case of armed conflict as well as when there are, in concreto, social, environmental or climate degrading situations, climate changes or the unsustainable exploitation of natural resources to a point where human survival is at risk, and the fundamental right to life and the paramount principles of freedom and self-determination are breached or are below the above-mentioned minimum threshold.
1. The Humanitarian Protection regime in Italy: vulnerability in context
In the decision commented, the Court of Cassation refers multiple times to humanitarian protection status and to the ground of individual vulnerability that justifies its recognition. Some clarification on the humanitarian protection regime is necessary, for two reasons. First of all, the general pre-condition for granting this protection is a situation of vulnerability. Thus, the flexibility in the application of this protection – both in the legal text and in the jurisprudential interpretation – has led to its recognition in a wide array of situations. Secondly, because of its flexibility, the humanitarian protection regime has progressively become the largest gateway for receiving protection in Italy until 2018. In that year, the humanitarian protection was abrogated by the Decree Law no. 113/2018, known also as the Security Decree or Salvini Decree, implemented by Law no. 132/2018. The Government’s aim was to limit the issuance of this permit only in certain cases. Therefore, the humanitarian protection has been replaced by special protection permits and permits for “special cases” concerning certain established categories and situations. Recently, the humanitarian protection permits have been partly re-introduced, with different name, through Decree Law no. 130/2020 that has softened the restrictive rules on migration championed by the then-Minister of Interior Salvini.
The humanitarian protection regime was introduced with the Law 40/1998 and thereafter enshrined in art. 5(6) of the Legislative Decree 286/1998 (Consolidated Act of provisions concerning the immigration regulations and foreign national conditions norms; hereinafter Consolidated Act) and applied to those who were not eligible for refugee status or subsidiary protection but could not be expelled due to “serious reasons of humanitarian nature, or resulting from constitutional or international obligations of the State”. As specified by a Circular of the Ministry of Interior in 2015, the “international obligations of the State” on which the issuance of humanitarian protection could be based include the European Convention on human Rights, the International Covenant on Civil and Political Rights and the Convention against the Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The humanitarian protection regime granted a two-years residence permit, renewable, during which the beneficiaries had the possibility to work and study. In addition, there was the possibility to convert the residence permit into a work permit.
Humanitarian protection was considered the last resort to obtain protection in Italy and, along with refugee status and the subsidiary protection, it implemented the constitutional right to asylum enshrined in Article 10(3) of the Italian Constitution. The latter establishes: “A foreigner who, in his home country, is denied the actual exercise of the democratic freedoms guaranteed by the Italian constitution shall be entitled to the right of asylum under the conditions established by law”. Moreover, the United Chambers of the Supreme Court of Cassation had established that Article 10(3) is immediately preceptive, therefore it can be directly recognised by the authorities through these three forms of protection even though there is not a legislation that defines the constitutional right to asylum (Decision no. 907/1999). Conversely, besides refugee status, subsidiary and humanitarian protection, no direct application of Article 10(3) of the Constitution was foreseeable (Court of Cassation, ordinance no. 10686/2012).
Humanitarian protection as such has been abolished by the Security Decree and has been replaced by special protection permits and permits for “special cases” concerning certain established categories and situations (such as medical treatment, particular civil value, calamity). However, the United Chambers of the Court of Cassation ruled on the non-retroactivity of the Security Decree, putting an end to a conflict of the case-law on this point (Decisions nos. 29459/2019, 29460/2019, 29461/2019). Therefore, even though humanitarian protection does not exist anymore in the protection regime, it can be granted for the asylum procedure that had already initiated at the time of the entry into force of the Decree, on October 5th 2018.
With Decree Law no. 130/2020, implemented by Law no. 173/2020, humanitarian protection has newly found its way, to some extent, into the Italian asylum system. Even though the legislator has not resumed the old regulatory framework, and the special protection permits can now be issued only in specific hypothesis – the most striking situations of vulnerability such as torture and inhuman and degrading treatment et alia – it has re-introduced the reference to the respect of constitutional or international obligations of the State in case of the refusal or the withdrawal of the residence permit. Although it is not excluded that such a reference could be only a statement of principle, one of the conditions for granting the special protection permit is the respect of private and family life, which could be interpreted extensively and applied to a wide array of (vulnerable) situations.
The humanitarian protection regime has represented a driving force in the implementation of the constitutional right to asylum. Before Security Decree or Salvini Decree, the legislator had not pre-defined the grounds falling within the open clause of “serious reasons of humanitarian ground” for the recognition of humanitarian protection, not even by way of example. However, the case-law has progressively clarified the scope of humanitarian protection. More specifically, some criteria for the recognition of humanitarian protection have been highlighted in the case-law: a) situations of vulnerability that could derive from the repatriation of the applicant; b) cases at stake which are intrinsically different from those that are relevant for the recognition of the status of refugee or the subsidiary protection; c) situations of vulnerability could be present even in the case where there is an impediment to granting international protection; d) an application based on humanitarian grounds (the Court mentioned healthcare problems or being a single mother with children). Therefore, a situation or condition of vulnerability was the general pre-condition for the recognition of humanitarian protection. The Court of Cassation (Decision no. 10922/2019) specified that the judges deciding on humanitarian protection cases should verify the existence of situations of vulnerability, on an objective base, even when lack of credibility has been established with reference to the statements and other pieces of evidence that supported the request for refugee and subsidiary protection. Where necessary, the judge could also supplement the allegations of the claimant, in force of the duty of cooperation in the inquiry (principio di cooperazione istruttoria).
The flexibility of the concept of humanitarian protection made it capable of adapting to all the new and potentially different humanitarian grounds and situations of vulnerability that justify the granting of protection. By way of example, a recent decision of the Tribunal of Naples recognised the humanitarian protection to a Pakistani national as the repatriation to the country of origin could put the applicant in a condition of extreme vulnerability due to the difficult situation the country is facing during the COVID-19 pandemic and the (already existent) deficiencies of the healthcare system. Interestingly, the current situation was taken into account by the judges of the Tribunal of Naples who, of their own accord, without a specific request on this point by the defence, referred to the international sources to ascertain the security situation in Pakistan, together with the condition due to COVID-19 and the healthcare system capacity. The Tribunal of Naples recalled article 46(3) of Procedure Directive – which establishes that an effective remedy provides for a full and ex nunc examination of both facts and points of law – and the related principle affirmed by the European Court of Justice in the Alheto case: “a court or tribunal of a Member State seized at first instance of an appeal against a decision relating to an application for international protection must examine both facts and points of law (…), which the body that took that decision took into account or could have taken into account, and those which arose after the adoption of that decision” (para. 118). Therefore, humanitarian protection was issued in order to protect the applicant’s right to health – that could have been put at risk in Pakistan – and taking into account the level of integration in Italy (Tribunal of Naples, 25.06.2020). Likewise, the Tribunal of Bari granted the humanitarian protection to a Bangladeshi national, in light of the pandemic situation in the country (Tribunal of Bari, 24.07.2020).
2. Environmental conditions and the risk for the right to life and the principles of freedom and self-determination
The decision commented herein is particularly important because the Court of Cassation has clearly established that environmental conditions, more specifically environmental disaster, climate change and the unsustainable exploitation of the natural resources, must be taken into due account, in relation to the protection of the right to life and the principles of freedom and self-determination, when evaluating the granting of humanitarian protection.
The Court of Cassation started the reasoning by drawing attention to the decision of the United Nations Human Rights Committee (hereinafter “UN Committee”) in the case Ioane Teitiota v. New Zealand (commented in the Cahier by Marie Courtoy). The UN Committee was called to decide on the refusal by the New-Zealand authorities to recognize the status of refugee to Mr. Teitiota. Indeed, the case attracted world-wide attention. The applicant was a resident of Tawara Island in the Republic of Kiribati in the Pacific where the rise in the sea level, caused by climate change, has led to costal erosion and is increasing every day the likelihood that the island will become uninhabitable and, ultimately, go underwater. Therefore, Ioane Teitiota equated his situation to the one of migrants fleeing war given that the rising level of the sea caused a wide array of consequences affecting land, housing and property (e.g. reduction of the inhabitable land on Tawara, increased population density per square kilometre, house crisis, land disputes, shortage of freshwater, destruction of the crops) leading to a deterioration in people’s health and a growing level of social tension.
The Court of Cassation acknowledged that, even though the application of Mr. Teitiota had been rejected, the UN Committee affirmed important principles of law that were deemed relevant for the case at stake. The Court of Cassation recalled the decisive passages of the decision. First of all, the UN Committee highlighted the obligation on the States parties to respect and ensure the right to life and the right not to be arbitrarily deprived of one’s life, enshrined in Article 6 of the International Covenant on Civil and Political Rights, which must be interpreted as extending also to the “reasonably foreseeable threats and life-threatening situations” that can result in the loss of life. However, States could violate Article 6 of the Covenant even when there is no loss of life. Among such threats and situations, the UN Committee mentioned “environmental degradation, climate change and unsustainable development” which represent some of the “most pressing and serious threats to the ability of present and future generations to enjoy the right to life” (para. 9.4). Likewise, individual well-being could also be adversely affected by severe environmental degradation, leading to a violation of the right to life (para. 9.5). In addition, the UN Committee stressed that the right to life should not be interpreted in a restrictive manner, but it includes also “the right of individuals to enjoy a life with dignity and to be free from acts or omissions that would cause their unnatural or premature death” (para. 9.4).
In light of the UN Committee decision, the Court of Cassation highlighted that, when the trial judge ascertains a situation of environmental degradation, such as the one in the Niger Delta, the assessment of the serious threats in the country of origin – that need to be done for the recognition of the humanitarian protection – should take into due account the risk for the right to life and for the right to an existence with dignity deriving from environmental disaster, climate change and unsustainable development. Indeed, the Court noted that the right to life and the paramount principles of freedom and self-determination are at risk not only in the case of an armed conflict, but also when there are situations that, in concreto, put at risk the above-mentioned rights, including degradations at social, environmental or climate level.
Other Italian Tribunals have already recognised the right to humanitarian protection due to the situation in the country of origin – connected with environmental and climate conditions – that could have interfered with the individual’s fundamental rights. Numerous cases were connected to natural calamities (such as floodwaters, water streams, earthquakes), but some of them recognised humanitarian protection for reasons related more specifically to climate change. By way of example, the Tribunal of Aquila (16.02.2018) granted humanitarian protection to a Bangladeshi national on this basis. The judge of Aquila highlighted that, due to deforestation and climate change, currently the rainy season in Bangladesh leads to the underwatering of the land, due to higher raising of the water level. Therefore, small land owners lose their source of subsistence and are forced to migrate. Moreover, the judge took note of the growing phenomenon of land grabbing. Likewise, the Tribunal of Cagliari (12.03.2019) has issued the humanitarian protection to a Senegalese national. Indeed, even though Senegal is one of the most stable economies in Africa, it is still affected by a high poverty rate and precarious healthcare system, and the State was facing a humanitarian crisis due to drought of the 2017.
Article 20 of the Consolidate Act establishes that temporary protection measures could be adopted by the Government to respond to humanitarian emergencies, which include natural calamities. In addition, article 20-bis of the Security Decree of 2018 introduced specific permit for calamity. Undoubtedly it is too soon to, on the one hand, evaluate the reach of article 20-bis and, on the other, to welcome the decision of the Court of Cassation as definitive change especially in light of the numerous amendments occurred with reference to the humanitarian protection in the last few years. Nonetheless, this decision is of historical significance, in part also because of the reference to the UN Committee decision. Thus, it is an important step towards the recognition of the mobility and the migration connected (or caused by) environmental conditions and climate change, and it highlights the necessity to address them in the near future.
C. Suggested Reading
Case law: United Nations Human Rights Committee, Views on Communication No. 2728/2016, Ioane Teitiota v. New Zealand, 24 October 2019.
A. Brambilla, “Migrazioni indotte da cause ambientali: quale tutela nell’ambito dell’ordinamento giuridico europeo e nazionale?”, Diritto, Immigrazione e Cittadinanza, Fascicolo 2/2017;
M. Courtoy, “An historic decision for ‘climate refugees’? Putting it into perspective”, Cahiers de l’EDEM, February 2020;
E. Colombo, “Il ruolo dellq protezione umanitaria nel panorama normative europeo e le possibili implicazioni della sua abolizione”, Eurojus, Fascicolo 1 – 2019;
F. Curi (ed.), Il Decreto Salvini. Immigrazione e sicurezza. Commento al d.l. 4 ottobre 2018, no. 113, conv. con mod. in Legge 1 dicembre 2018, no. 132, Pisa, Pacini Giuridica, 2019;
L. Minniti, “Introduzione. La Costituzione italiana come limite alla regressione e spinta al rafforzamento della protezione dello straniero in Europa”, Questione Giustizia, n. 2/2018;
C. Scissa, “La protezione per calamità: una breve ricostruzione dal 1996 ad oggi”, Forum di Quaderni Costituzionali, 1/2021;
N. Zorzella “La protezione umanitaria nel sistema giuridico italiano”, Diritto, Immigrazione e Cittadinanza, Fascicolo 1/2018.
To cite this contribution: F. Raimondo, “‘The ineliminable core constituting the base of personal dignity’: the road-map for the protection of people fleeing the effects of climate change?”, Cahiers de l’EDEM, April 2021.
 Even though humanitarian protection does not find its ground in the Qualification Directive, it is nevertheless legitimated by EU Law, in article 6(4) of the Directive n. 115/2008 which establishes: “Member States may at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory”. A study on the complementary protection in some European countries has been done in 2009 by European Council on Refugees and Exiles (ECRE). ECRE, Complementary Protection in Europe, July 2009.
 Given that the decision of the Tribunal of Ancona dates back to 12.06.2019 and that the Court of Cassation refers to the humanitarian protection, it is not unreasonable to conclude that the regime applicable at the case at stake is the one in force before the Salvini Security Decree. However, in establishing the principle of law that the Tribunal should follow in issuing a new decision on the case, the Court of Cassation refers to the “humanitarian protection” as ruled in Article 19 (1 and 1.1.) of the Consolidated Act, id est the regime in force after the most recent amendments introduced by Decree Law no. 130/2020. With regard to the issues of transitional law in the humanitarian protection regime, please see the Relation n. 20 of 20.11.2020 of the Supreme Court of Cassation, pp. 7-10.
 L. Minniti, «Introduzione. La Costituzione italiana come limite alla regressione e spinta al rafforzamento della protezione dello straniero in Europa», Questione Giustizia, n. 2/2018, p. 9.
 M. Balboni, «Abolizione della protezione umanitaria e tipizzazione dei casi di protezione: limiti e conseguenze (art. 1 d.l. no. 113/2018, conv. con modd. da l. 132/2018)», F. Curi (ed.), Il Decreto Salvini. Immigrazione e sicurezza. Commento al d.l. 4 ottobre 2018, no. 113, conv. con mod. in Legge 1 dicembre 2018, no. 132, Pisa, Pacini Giuridica, 2019, p. 22.