Climate litigation and climate-induced displacement: assessing judicial responses to a governance gap

Abstract

Contenzioso climatico e migrazioni indotte dalle condizioni climatiche: un’analisi delle risposte del giudiziario a un governance gap - The escalating climate crisis exposes a critical governance gap regarding human displacement that international law has yet to adequately address. Here we show that strategic litigation is functioning as a necessary gap-filler through two distinct categories: cases seeking protection status (migration as subject) and systemic cases invoking displacement as evidence of harm (migration as impact). We find that while individual protection claims frequently founder on doctrinal obstacles, they nonetheless articulate legal standards that contribute to a transnational process of normative sedimentation. By analyzing case-law from international treaty bodies and domestic courts, we demonstrate how vulnerable communities are acting as norm entrepreneurs, compelling legal systems to begin recognizing state obligations spanning prevention and remedy. Our results highlight that this iterative judicial dialogue is gradually constructing a normative framework to manage climate mobility in the absence of specific legislative action.

Keywords: Climate litigation; Climate-induced displacement; International human rights law; Non-refoulement; Climate migration