Il migrante ambientale dinanzi al giudice e il problema degli obblighi di protezione

By means of a Court order dated 18th February 2018, the Court of L’Aquila upheld the appeal submitted by a Bengali citizen against the Local Committee for International Protection in Ancona, thereby granting him humanitarian protection according to art. 5, par. 6, d.lgs. no. 286/1998. The judge based the granted protection on the international duty to recognize the right of everyone to have an adequate standard of living (art. 11 International Covenant on economic, social and cultural rights), that is mirrored – in the Court’s opinion – in articles 2 and 32 of the Italian Constitution. Actually, on the judge’s side, it would have been more correct to recall art. 12 of the same Covenant (right to health), which has been considered an «inclusive right» by the same Committee on economic, social and cultural rights of the UN. However, if the granted protection could be based on the right to health as defined by the Covenant, it would have been sufficient to recall art. 32 of the Italian Constitution; as a matter of fact, Courts are asked to interpret national prescriptions in compliance with the scope of the corresponding rule provided for at international level. If humanitarian protection can be granted when international or constitutional duties are present or when serious reasons of humanitarian nature («seri motivi…di carattere umanitario») are detected, then the essence of humanitarian protection consists of the possibility to protect migrants not only when their fundamental human rights are put into question (since their protection is required by both international and constitutional law), but also – and especially – when the “asylum” seeker cannot be repatriated due to the social, political and environmental situation in his/her country of origin. Art. 5, par. 6, d.lgs. no. 286/1998 has been partially repealed by d.l. no. 113/2018 (so-called “decreto sicurezza”), converted into l. no. 132/2018; however, by eliminating the reference to international and constitutional duties, the State remains nevertheless obliged; then, the only concrete effect stemming from the repeal corresponds to the impossibility to assess the objective conditions complained of by the applicant (namely, the above mentioned serious reasons of humanitarian nature); in any case, the latter seem to re-emerge, at least partly, in the context of the new residence permit “due to calamity” in the country of origin, introduced by the same d.l. no. 113/2018.