Judicial Trajectories in the Recognition of Environmental Migrants

Abstract

This article aims to trace the recent judicial trajectories in the promotion and recognition of environmental migration. It will first show the general background in which the phenomenon is placed, thus underlying its main characteristics and problems. Subsequently, it will offer an overview of some noteworthy examples of the so-called “climate change litigation”. Indeed, notwithstanding the lack of binding instruments and the inapplicability or inadequacy of the existing legal instruments for the protection of environmental migrants, noteworthy examples of increasing awareness about the relationship between environmental degradation and human rights can be found in several cases decided by international human rights judicial or quasi-judicial bodies. In particular, two recent decisions of the United Nations Human Rights Committee (U.N.H.R.C.) will be assessed. The article will also assess the increasing sensibility of the European Court of Human Rights (E.Ct.H.R.) in deciding environmental cases through a human-rights-based approach. By moving from the supranational context to the national one, the paper will focus on two recent decisions adopted by the French Bordeaux Administrative Court and the Italian Court of Cassation. Indeed, they both represent relevant examples of the role played by national courts in broadening the interpretation and application of the existing instruments of protection for environmental migrants. The analysis of the mentioned decisions will then be framed in the wider context of the legal order of the European Union (E.U.), highlighting how E.U. instruments of secondary law at disposal do not appear adequate for guaranteeing a sort of protection for environmental migrants.