A rights‐based approach to the choice of forum in climate displacement litigation: Lessons from the Americas

• Published date: 01 May 2023
• Author: Armelle Gouritin
• Date: 01 May 2023
• DOI: http://doi.org/10.1111/eulj.12486

ORIGINAL ARTICLE

A rights-based approach to the choice of forum in

climate displacement litigation: Lessons from the

Americas

Armelle Gouritin

*

Abstract

Few studies address climate litigation and climate forced mobility together, and the link between cli-

mate litigation and internal forced climate displacement remains poorly addressed. This article aims

to participate in filling this void. We focus on climate displacement litigation argued before regional

human rights courts (the Inter-American Court) and national human rights protection bodies (the

Mexican Commission) to determine the adequacy of each from the perspective of potential litigants.

We address institutional, procedural and positive law within the context of water scarcity. We find

that while institutional and procedural aspects reveal the potential of the Inter-American Court in

ruling on climate displacement cases, the application of the positive obligations doctrine by the

Mexican National Human Rights Commission is more disaggregated and a priori suitable to ground

the course of action of potential litigants.

1|INTRODUCTION

Climate change forcefully displaces more people than conflicts do: of the 40.5 million newly displaced people in

2020, 30.7 million were displaced by disasters and almost 89% of those were climate-related events. A far smaller

proportion were displaced by conflict and violence (9.8 million).

1

The phenomenon is becoming consistently more

visible and is higher on political agendas.

2

It reveals the human face of climate change, departing from technical or

cold numerical climate change narratives.

Climate forced displacement refers to forced mobility induced inter alia by climate change. The literature usually

identifies a set of five climate change forced mobility scenarios: slow-onset phenomena (gradual environmental deg-

radation such as biodiversity loss, droughts, etc.), sudden-onset events (such as floods), contexts of generalised vio-

lence, forced resettlement decided upon by public authorities and rising sea levels.

3

We include a sixth scenario:

*

Researcher for México/CONACyT –Social Sciences Latin American Faculty, Mexico.

1

Internal Displacement Monitoring Centre (IDMC), Global Report on Internal Displacement, 2021.<https://www.internal-displacement.org/global-report/

grid2021/>, accessed 27 June 2023.

2

R. Ibarra Sarlat, Desplazados climáticos. Evoluci

on de su reconocimiento y protecci

on jurídica (UNAM/Instituto de Investigaciones Jurídicas, 2021).

3

W. Kälin, ‘Conceptualising Climate-Induced Displacement’, (2010) 81 Climate Change and Displacement: Multidisciplinary Perspectives, 102.

Received: 5 October 2022 Revised: 9 February 2024 Accepted: 12 February 2024

DOI: 10.1111/eulj.12486

362 © 2024 John Wiley & Sons Ltd. Eur Law J. 2023;29:362–377.wileyonlinelibrary.com/journal/eulj

forced displacement resulting from the adoption of climate mitigation projects or measures (for example, renewable

energy infrastructure projects). This scenario is crucial, given that such projects or measures are intended to support

the meeting of climate mitigation goals.

4

Climate displacement is intrinsically a social and climate justice concern: the most vulnerable sectors of the

population are more likely to be forcefully displaced due to climate change. Even though they are not major

greenhouse gas emitters, they are more susceptible to the impacts of climate change and have less capacity to

adapt to these, and forced mobility exposes them to a wide range of human rights abuses.

5

While climate litiga-

tion is also a climate justice issue as it embodies the environmental procedural right to access justice, the inter-

section between climate displacement and climate litigation remains scantly investigated. In this article, we intend

to explore this intersection and locate climate displacement litigation firmly within a human rights–based

approach.

Climate-displaced people and communities, non-governmental organisations and civil society organisations

tend to have limited resources to bring cases before adjudicative and non-adjudicative bodies.

6

Considering their

specific (and potentially different) respective objectives, we aim to add to the current limited academic literature

that focuses on the rights-based approach, climate litigation and forced climate migration. We propose elements

to determine the best human rights forum for climate litigation regarding internal climate forced displacement

between an international judicial or national administrative human rights protection body. The criteria we apply

all stem from the rights-based approach: procedural and institutional aspects of human rights protection bodies,

the differentiated human rights approach and the positive obligations doctrine. We argue that the rights-based

approach criteria can effectively guide the choice of venue of potential litigants, i.e., choice of forum from a

rights-based perspective.

More specifically, we focus on climate litigation before the Inter-American Court of Human Rights (‘the Court’)

and a national human rights commission, the Mexican National Human Rights Commission (‘the Commission’). We

adopt a broad understanding of litigation, since we address both an adjudicative (the Court) and an administrative

body (the Commission).

7

This choice is in line with the rights-based approach and the objective of, if not obtaining

climate justice, at least remedying climate injustice.

We seek to balance the potential of these venues against their limitations. We first discuss the theoretical back-

ground for our argument, focusing on the articulation of climate litigation and forced climate internal displacement

(Section 2). We then consider a selection of institutional and procedural aspects (Section 3) and subsequently direct

attention to litigants' course of action, namely substantial law and standard setting. We focus on a specific climate

internal displacement scenario: slow-onset environmental degradation generated or amplified by climate change,

thereby focusing on the prevention of climate displacement (Section 4).

4

A. Gouritin, ‘Una aproximaci

on al encuentro entre migraci

on y efectos climáticos’, in Armelle Gouritin (ed.), Migrantes climáticos en México (FLACSO,

2021), at 19–55.

5

Ibid., and A. Gouritin, ‘Matriz de análisis: territorio y derechos humanos’, in A. Gouritin (ed.), Migrantes climáticos en México (FLACSO, 2021), at 67–128.

6

In the case of climate-displaced persons and communities, such a limitation stems fromtheir pre-existing vulnerability, including economical vulnerability.

Indeed, forced climate-displaced persons tend to belong to the most vulnerable sectors of society. See Gouritin, above, n. 4.

7

For the adoption of a similar broad notion not limited to judicial bodies, see, among others, I. Alogna and E. Clifford, Climate Change Litigation: Comparative

and International Perspectives (British Institute of International and Comparative Law, 2021). <https://www.biicl.org/publications/climate-change-litigation-

comparative-and-international-perspectives>.

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