Abstract
Social exclusion and migration are multidimensional human phenomena, which are interlinked in various ways. The interconnection with the social, economic and political environments is the main element they share and that determines their interaction. This paper acknowledges that migration status can be one of the grounds for social exclusion and, at the same time, the conditions of social exclusion – or capability deprivation, in A. Sen's words – can affect the choice to migrate, determining mobility. Since exclusionary processes can be triggered by the discriminatory recognition or non-recognition of migrants’ rights, this paper focuses on the lack of legal status protecting environmental migrants at the international level. Lastly, the analysis of the Ioane Teitiota v. New Zealand case and the Italian Court of Cassation's ordinance n. 5022/2021 allows us to consider new perspectives for the recognition of rights to migrants who present vulnerabilities and protection needs falling outside the scope of the Geneva Convention.
Authors:
Sara Squadrani - Head Researcher Mondo Internazionale G.E.O. Culture & Society
Davide Moschella - Junior Researcher Mondo Internazionale G.E.O. Politics
1. Social Exclusion and Migration: Interlinked Phenomena
1.1. Social Exclusion Between Theory and Practice
Social exclusion and migration are multidimensional human phenomena, which are interlinked in various ways. Although not officially, social exclusion is “a state in which individuals are unable to participate fully in economic, social, political and cultural life” but also as a “process leading to and sustaining such a state” (UNDESA, 2016). Alongside this “practical” definition, social exclusion can also be understood as “a theoretical concept, a lens through which people look at reality and not reality itself” (de Haan, 1999). Indeed, its meaning and the discourse surrounding the concept varies according to the "prevailing political and cultural contexts" (Mathieson et al., 2008).
The contemporary concept of social exclusion arose in France in the 1970s, when unemployment and socio-economic inequalities negatively affected national social cohesion. Subsequently, this Western-born concept started to be used in the wider global context to assess the living conditions of different countries’ populations and, more specifically, to assess and tackle poverty. Indeed, understanding the causes, the consequences and the processes of social exclusion can be useful for producing remedial policies.
An interesting approach to social exclusion is the one provided for by Amartya Sen, the economist who gave birth to the Human Development Index (HDI) together with Mahbub ul Haq in 1990. At the moment, and given its multidimensional nature, a global indicator of social exclusion does not exist. However, the HDI, included in the annual UNDP Human Development Report, globally and on a State-by-State basis assesses the level of what A. Sen has defined as the essential capabilities of human beings, which make up human development. These essential capabilities are: length of life and life expectancy, education, and decent standards of living. In Sen’s theoretical framework, the deprivation of basic or essential capabilities determines poverty and poverty is connected to social exclusion. Relational and material deprivations can in fact lead to social exclusion, but social exclusion can sometimes lead to capability deprivation or be in itself a deprivation. This can occur directly or indirectly; deprivation can directly impoverish someone’s life when it takes on a constitutive relevance, or it can cause other kinds of deprivation which reduce the opportunities coming from the social context, playing an instrumental role. Moreover, A. Sen distinguishes between active exclusion, when deprivation and, therefore, exclusion come from policy or legislative choices directly aimed at creating discriminatory conditions. On the other hand, passive exclusion stems from social processes or economic trends further exacerbating the existing level of poverty (Sen, 2000).
These mechanisms can describe the complexity of social exclusion practices and consequences. In more material terms, deprivations of capabilities can take the form of long-term unemployment, labour and credit market exclusion; lack of recognition of social and political rights, discriminatory meaures hindering access to social security systems, basic education, and medical facilities, gender, age, disability, race, ethnicity, religion-related discriminations and inequalitie, exclusion from food market, and exclusion “from the effective opportunities that globalization offers (such as new patterns of exchange, new goods to produce, new skills to develop, new techniques of production to use, and so on)” (Sen, 2000: 28). These are just some of the experiences that can produce social exclusion.
1.2. Migration as Cause and Consequence of Social Exclusion
Migration status can be one of the grounds for social exclusion too (UNDESA, 2016: 18) and, at the same time, the conditions of social exclusion or capability deprivation mentioned above can affect the choice to migrate, determining mobility. “In general, international migration is intimately connected with several dimensions of human security” (UNDP, 2022: 105) and, therefore, with the essential capabilities of human beings. Indeed, migration itself is a systemic and multidimensional phenomenon. On the one hand, it is a “long-standing human phenomenon” (Chetail, 2014) as it has always been and continues to be experienced by our societies. It has been the consequence of specific historical events and at the same time human mobility has also contributed to shape the world we live in today, creating relations and connections among countries and peoples, transferring cultural practices from place to place, revealing new lands, products and skills, creating and destroying balances.
On the other hand, it is a “human” phenomenon as the protagonists of migration flows are human beings. Indeed, migration is entangled with human histories and human dignity, personal empowerment and social development, life and health, suffering and conflicts. Migrants’ lives are surrounded by specific social, economic, and political contexts, in which they can experience active or passive exclusion before and after they engage in mobility. Moreover, as we live in a globalized and interdependent world, perhaps also because of international migration, migration can be considered a global phenomenon affecting every country in the world, and at the same time a phenomenon which is affected by the contemporary profound global transformations. The interconnection with the social, economic and political environment is the main common element social exclusion and migration share and, at the same time, it determines their interaction.
The 2022 UNDP Human Development Special Report acknowledges that “Dire development crises of diverse backgrounds create food insecurity, poverty, scarcity and lack of resources and opportunities for millions of people worldwide”. In light of this, people decide to migrate to look for new opportunities and, therefore, better living conditions. Whether migrants succeed in moving out from the kind of exclusion they lived in their country of origin depends on the conditions they are confronted with in the destination country. This means that being a migrant can be in itself a cause for social exclusion (Khan at el., 2015 : 24). As mentioned above, policies can directly or indirectly affect the inclusion or exclusion of a migrant in the host society, and one of the ways in which exclusionary processes can be triggered is the discriminatory recognition or non-recognition of migrants’ rights.
2. Recognition of Migrants’ Rights and Access to Social Protection
2.1. Is There a Legal Definition of International Migration?
Given the complexity of migratory experiences, an official internationally agreed definition of migration able to confer upon migrants a legal status does not exist. The IOM Glossary on international migration informally defines it as “The movement of persons away from their place of usual residence and across an international border to a country of which they are not nationals”, while the migrant is “An umbrella term” including “a number of well-defined legal categories of people […]; as well as those whose status or means of movement are not specifically defined under international law, such as international students” (IOM, 2004).
However, an internationally defined legal status exists only for refugees: the Convention of Geneva of 1951, and its 1967 Protocol, define the refugee as "a person who, owing to a well-founded fear of persecution 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". States parties to the Geneva Convention can recognize the refugee status to asylum seekers who apply for asylum, according to the national procedures established by national law. This is the only case in which an international legal instrument defines a clear legal status for a specific category of migrant.
2.2. The Relationship Between Migrants’ Rights and Social Exclusion
At the international level, a complex interaction between norms of customary law, treaty law, soft law (belonging to International Human Rights, Labor, Humanitarian, Trade, Transnational Criminal, Diplomatic and Consular Law, and Law of the Sea) addresses international migration. Despite its fragmentation, international norms in the field of migration are important to strike a balance between migration control and the respect of human rights.
However, only the domestic jurisdiction of the destination country can confer on migrants the right to enter or remain in its territory and determine the rights and duties they can enjoy and exercise there. When the recognition of rights in the host country is linked to the possession of a residence permit, capability deprivations may occur, leading to social exclusion.
First, the category of migrants who suffer the most from social exclusion mechanisms is the one of undocumented migrants. This status does not allow migrants to access the formal labor market and the related safeguards within the rule of law, such as fair wages and adequate working conditions, or to access the social assistance facilities and services (UNDP, 2022: 104). Moreover, undocumented “migrants’ access to social protection remains alarmingly low in most countries, exacerbating migrant workers’ risk of falling into poverty and hindering their ability to ensure an adequate standard of living for themselves and their families” (ITUC, 2021).
Second, some categories of migrants present protection needs and vulnerabilities which derive from a deprivation of capabilities, but they cannot be the ground for the recognition of a legal status in the destination country, as the protection needs fall outside the legal definition of refugee presented above. For this reason, and because they generally enter a third country without a valid travel document, they may not be accorded any form of protection nor the related rights despite having experienced systemic human rights violations and abuses or being unable to come back to their country. As a consequence, they would experience social exclusion being undocumented migrants. These migrants may be defined as “stranded” or forced displaced individuals who can be part of mixed migratory flows (Collyer, 2010). Among them there may be “Individuals whose livelihoods and incomes are endangered by climate change” and who decide to “turn to migration” (UNDP, 2022). In the end, this last aspect highlights the relationship between international migration, migrants’ rights and social exclusion and calls for new solutions which are able to address protection needs and counter social exclusion.
3. The Exclusion in the Era of Climate Change: The Case of Environmental Migrants
3.1. The Problem on an International Scale
Climate change, the main cause of phenomena such as drought, sea level rise and desertification, is also, despite the lack of consistent official data, a key factor of international mobility.
In this regard, both in the claims of the United Nations High Commissioner for Refugees (UNHCR) and in the assertions of the (UN) “Global Compact on Refugees”, the need to guarantee legal and social protection to people who are beyond the borders of their own State due to the effects of climate change assumes center stage. In particular, this needs to be done – at least in intention – through the use of complementary protection mechanisms also regulated by domestic laws (UN, 2018). More in detail, the UNHCR stressed that: “A person fleeing such circumstances may often qualify as a refugee under the 1951 Convention definition, in line with UNHCR’s interpretative guidance”. Plus, regardless of regional international protection systems, the individual is considered a refugee under the UNHCR mandate (UNHCR, 2017).
In contrast to this human rights-oriented approach, the truth of the matter is not necessarily characterized by inclusiveness, both legally and, as a result, socially. To this end, it is worth remembering that in the Geneva Convention, as well as in all the following regulatory acts, a legal definition for people forced to move due to climate change has never been expressed (UN, 1951). Consequently, the “environmental migrant” status, with all that this assertion socially implies, does not currently exist.
However, there are some glimmers of light, whereas the decision taken by the UN Human Rights Committee on 7 January 2020 (“Ioane Teitiota v. New Zealand”; “Teitiota case” from now on) represents certainly the most important one. In that circumstance, the Committee marked the recognition of two fundamental principles of international law. On the one hand, it admitted that the effects of climate change may involve a violation of the right to life and the prohibition of inhuman or degrading treatment. On the other hand, for the first time ever, it established that the risk of suffering such effects in the country of origin generates the prohibition of refoulement by third States, provided that the principle of non-refoulement is an essential protection under international human rights, refugee, humanitarian and customary law. It prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, illtreatment or other serious human rights violations.
The case involved Ioane Teitiota, a citizen of the Republic of Kiribati, who had been denied by New Zealand the recognition of refugee status under the Geneva Convention. After being repatriated, the applicant referred to the aforementioned UN Human Rights Committee, being firmly convinced that the return to Kiribati could expose him and his family to a serious risk to life, in violation of the rights under articles 6 or 7 of the International Covenant on Civil and Political Rights of 1966. The articles at issue establish, respectively, the right to life and the prohibition of inhuman or degrading treatment.
The appellant stressed the impacts of sea level rise, in a context in which floods often caused gradual coastal erosion and saline infiltration, contaminating freshwater wells. In his opinion, these criticalities negatively impacted a family (with health problems) who based their livelihoods on fishing and agriculture.
In its decision, the UN Human Rights Committee argued that New Zealand, by repatriating the family, did not violate the right to life. Nonetheless, it considered possible, as a general principle (and in the absence of concrete national and international efforts) the fact that the effects of climate change could expose individuals to the violation of their rights pursuant to the aforementioned articles. Consequently, this also entails the prohibition of refoulement by the returning State.
Before this decision the violation of the human right to life under this specific UN Pact was subordinated to the capacity to prove that the threat was individual, current or imminent. With this decision, the Committee established that the threat must be “reasonably foreseeable” (UN Human Rights Committee, 2018). Furthermore, the fact that an entire state (Kiribati) could (even just potentially or in the long term) be submerged by rising sea levels was a serious risk. Most importantly, this risk was considered possibly harbinger of inadequate living conditions which can become incompatible with Article 6 of the International Covenant on Civil and Political Rights.
Plus, with reference to this decision, it is pivotal to notice that the international recognition of the so-called “integrated approach” in the interpretation of human rights marked a “first”, in terms of social issues. According to it, the impoverishment of social rights, such as the right to water and food, can lead to the violation of civil rights, with special reference to the right to life and the prohibition of inhuman or degrading treatment. Likewise, the UN Human Rights Committee clarifies that “Deprivation of life involves a deliberate or otherwise foreseeable and preventable life-terminating harm or injury, caused by an act or omission”, whereas the relevance of omissive conduct marks the international recognition of the theory of positive obligations, already in vogue in the context of regional justice (UN Human Rights Committee, 2018).
According to this approach, the States, in addition to complying with the negative obligation to refrain from engaging in conduct resulting in arbitrary deprivation of life, are required to protect, as a positive obligation, “reasonably foreseeable threats and life-threatening situations that can result in loss of life”. Within this framework, the European Court of Human Rights has established that three main elements must be considered in attributing the responsibility to a State with respect to the violation of the right to life. These are: the origin of the threat, the imminent risk and the extent to which this could be limited.
The decision of the UN Human Rights Committee confirms these mantras and at the same time seems to widen the scope of these obligations. More in detail, it establishes the principle according to which also the “reasonable predictability” (and not only the “imminent risk”) of a natural event that could threaten the right to life – associated with the incapacity of the home State to fulfill its positive obligation – generates, for third States, the negative obligation of non-refoulement towards the country in question (Castiglione, 2020).
3.2. On a National Scale: an Italian Legal Case.
In the wake of what we said so far, it is interesting to dwell on the ordinance n. 5022/2021 by the Italian Court of Cassation, which also deserves, among others, a closer look. Filed on February 24, 2021, it acknowledged the possibility to recognize a form of “humanitarian protection” to migrants fleeing their country of origin due to environmental disasters (Corte di Cassazione, 2021). The facts that led to the decision at issue concern the particular situation of a migrant from the Niger Delta area: due to the environmental instability of the region, he fled to Italy, where he could not obtain any form of protection. The trial judge – in reconstructing the social and geopolitical situation of the appellant – declared the existence of instability conditions, linked to political conflicts and environmental damage generated in particular by the exploitation of the region by oil companies. Nevertheless, the Court claimed that the context was not characterized by generalized violence (armed conflict or an equivalent situation); consequently, the applicant was not eligible for subsidiary protection as described by the so-called “Qualification Directive” (European Parliament and Council, 2011).
However, the decision of the Italian Cassation marked a turning point. It established vigorously that the trial judge is the holder of the task of assessing the situation in the applicant’s country of origin also for recognizing humanitarian protection (a hypothesis not even explored by the trial judge), “with specific reference to the particular risk for the right to life and a dignified existence deriving from environmental degradation, climate change or unsustainable development of the area”. More importantly, this crucial concept was accompanied by the recognition of the principle whereby the danger to someone’s life may derive from social and/or environmentally degraded conditions, and not only from situations of war conflict (Ciervo, 2021).
Given that this verification action by the trial judge was completely lacking, the Cassation concluded by upholding the appeal and establishing the referral of the case to the Court in a different composition. (Perrini, 2021).
4. Environmental Migrants: What to Expect from the Future?
Looking ahead, these two case studies (the “Teitiota case” more than the Italian one) leave an interesting legacy characterized by pros and cons. With regard to the historic “Teitiota case”, the optimism of those who see in this precedent the possibility for the recognition of the category of environmental refugees is probably inappropriate, since the UN Human Rights Committee reflects specifically on a perspective connected to human rights. It does not enter into the merits of the criteria for qualifying a refugee according to international law. However, there are encouraging signs for a brighter future in terms of legal and social inclusion (Castiglione, 2020).
First of all, it is crucial to note that the UN Human Rights Committee’s pronouncement has a wider protective potential. For fully understanding this assertion, we firstly need to recall that the prohibition of refoulement contained in Article 32 of the International Refugee Convention only applies when facing a risk of violating the right to life and personal freedom for reasons related to one of the five conventional reasons (race, religion, nationality, belonging to a particular social group, and political opinion) (UN, 1953). In contrast, the principle of non-refoulement contained in the International Covenant on Civil and Political Rights provides for a complete prohibition of refoulement to States where every individual (not necessarily a refugee as provided for by the Convention on the Status of Refugees) risks the violation of Articles 6 and 7 of the UN Pact. Furthermore, while the International Refugee Convention provides – in its Article 32 – for exceptions to the prohibition of refoulement, the protection of the right to life and the prohibition of inhuman or degrading treatment contained in the Covenant does not know exceptions.
With reference to the impact that the ordinance n. 5022/2021 by the Italian Court of Cassation can have, it is safe to say that the decision is significant from many angles. Firstly, it constitutes another brick for a (mostly) national recognition of the need to ensure protection for migrants who leave their country for reasons linked to environmental disaster. This is highly relevant, also considering that, as already mentioned, the individuals’ legal status is defined first and foremost according to domestic policy procedures. Secondly, it is worthwhile because the Cassation’s judgment is based on the decision of the United Nations Committee on Human Rights in the “Teitiota case”, whose legacy appears to begin proselytizing, at least, such as the case, on a national scale. This highlights, also for future reference, the great importance that the supranational bodies can assume. Finally, the decision is important in terms of recognition of the humanitarian protection institute, which is a useful tool to ensure protection for the so-called (nonlegal) environmental migrants. Officially replaced by the ‘special protection’ in December 2019 in Italy, it is an addition and complement to the recognition of the international protection of refugee status, a further and broader protection mechanism aimed to protect those who do not have the attributes of a refugee.
By way of conclusion, the future may present fewer obstacles for those who will try to obtain a recognition that they are actually entitled to and which allows them to escape social exclusion mechanisms. Despite the lack of specific protection for migrants who present vulnerabilities and protection needs falling outside the scope of the Geneva Convention, such as environmental migrants, the International Human Rights law can play a crucial role. It can perform the function of filling this gap at the international level and, consequently, at the national one, as emerged from the decisions on which we commented.
Source Classification
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2 | Presumably true | Not confirmed; logical in itself; coherent with other information on the topic |
3 | Maybe true | Not confirmed; reasonably logical in itself; coherent with some other information on the topic |
4 | Uncertain | Not confirmed; possible but not logical in itself; no other information on the topic |
5 | Improbable | Not confirmed; not logical in itself; contradicts with other information on the topic |
6 | Not able to be evaluated | No basis to evaluate the validity of the information |
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