HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

acknowledgment concludes that certain migrants desperately need another form of protection. Nevertheless, regardless of an individual’s immigration status, a state must still respect their human rights if they are in its jurisdiction. 22 The use of the principle of non-refoulement in the context of climate change has been proposed as a possible complementary protection under international human rights law. 23 This principle prohibits “states to extradite, deport, expel or otherwise return a person to a country where his or her life or freedom would be threatened, or where there are substantial grounds for believing that he or she would risk being subjected to torture or other cruel, inhuman and degrading treatment or punishment, or would be in danger of being subjected to enforced disappearance, or of suffering another irreparable harm”. 24, 25 The concept of non-refoulement, which is an integral part of the law against torture and other cruel treatment, is distinguished by its absoluteness. Therefore, the applicability of this concept under pertinent human rights law treaties is more expansive than that of international refugee law. 26 2.2 Migrants’ Protection under European Law The European Union introduced a Qualification Directive, namely subsidiary protection, as a complementary form of international protection to fulfil its responsibility of protecting the human rights of migrants. It applies to a third-country national or a stateless person who does not meet the criteria for being a refugee but who has shown that upon return to their country of origin, they would face a real risk of suffering serious harm. Serious harm consists of (a) the death penalty or execution; (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person because of indiscriminate violence in situations of international or internal armed conflict. 27 This exhaustive definition leaves no space for additional serious harm, especially for naturally occurring incidents or slow ongoing processes. In the context 22 Platform on Disaster Displacement. T he Slow onset effects of climate change and human rights protection for cross-border migrants [online]. Geneva, 29 November 2018, para. 58 [cit. 2024-06-15]. Available at: https://disasterdisplacement.org/resource/slow-onset/. 23 Ibid., para. 60. 24 International Organization for Migration. Glossary on Migration. In International Migration Law Series No. 34 [online]. 2019, p. 1498 [cit. 2024-06-15]. Available at: https://publications.iom.int/system/ files/pdf/iml_34_glossary.pdf. 25 Compared to Art. 33(1) of the Refugee Convention, which states: “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. The principle of non-refoulement is also enshrined in Art. 2(3) of the OAU Convention governing the Specific Aspects of Refugee Problems in Africa and reaffirmed as a rule of jus cogens in the Cartagena Declaration on Refugees (para. 5). 26 Compared to Art. 33 of the Refugee Convention, Art. 2 and 3 of the European Convention on Human Rights or Article 6 of the International Covenant on Civil and Political Rights. 27 Qualification Directive, Art. 15.

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