Legal responses to climate immobility: Safeguarding the right to stay in the climate emergency

Introduction

Climate change is profoundly reshaping patterns of human mobility, acting both as a driver of displacement and as a factor influencing decisions to stay in place. While increasing attention has been devoted to climate-induced migration, far less consideration has been given to populations who do not move. Yet immobility—whether voluntary or constrained—constitutes a central, though often overlooked, dimension of human responses to environmental change.

The scale and urgency of this phenomenon are reflected in global assessments. The Global Risks Report 2025 by the World Economic Forum highlights an increasingly fragmented global outlook in which environmental risks, particularly extreme weather events, biodiversity loss, and ecosystem collapse, are expected to dominate the coming decade. ¹ Similarly, Planet on the Move: Reimagining Conservation at the Intersection of Migration, Environmental Change and Conflict, developed by the IUCN Commission on Environmental, Economic and Social Policy, estimates that up to 700 million people could be displaced by 2050 in the absence of effective mitigation and adaptation measures. ² At the same time, these dynamics also shape the conditions under which people stay in place, reinforcing the understanding of climate change as a threat multiplier that disproportionately affects populations in situations of vulnerability. ³

Mobility under conditions of environmental change is not simply a matter of individual choice. Rather, it is shaped by a complex interaction of environmental, economic, social, political, and cultural factors. While climate change is expected to intensify displacement pressures, the capacity to move remains unequally distributed. Many of those most affected lack the financial, social, or institutional resources required to migrate, while others may choose to stay due to strong attachments to place, identity, or cultural continuity. ⁴ As a result, both mobility and immobility must be understood as differentiated and context-dependent processes rather than as binary outcomes.

Within this context, this article places at its centre the emerging concept of the “right to stay.” This concept shifts the analytical focus from movement to the conditions under which staying in place can be a viable, protected, and dignified option. ⁵ The right to stay refers to the entitlement of individuals and communities to stay in their places of habitual residence, provided that conditions of safety, dignity, and habitability are ensured. It complements the right to freedom of movement by encompassing not only the right to move freely but also the freedom to choose one's residence, as recognised under Article 13 of the Universal Declaration of Human Rights (UDHR) ⁶ and Article 12(1) of the International Covenant on Civil and Political Rights (ICCPR). ⁷ Moreover, recognising the right to stay highlights the social consequences of climate change and the differentiated responsibilities in its origins. Ultimately, it represents an expression of climate justice, reclaiming the right of people to resist and stay in their territories in the face of impacts largely generated by the high-emitting economies of the Global North. ⁸ The Intergovernmental Panel on Climate Change identifies four broad forms of climate-related mobility: adaptive migration, forced displacement, planned relocation, and immobility. This latter category encompasses both the inability to move and the decision to stay in high-risk areas, highlighting the need to distinguish between constrained and voluntary forms of immobility. ⁹ This distinction is crucial, as it directly affects the extent to which individuals and communities can exercise meaningful choice, and thus the extent to which the right to stay can be meaningfully realised.

Rather than treating the right to stay as a residual concern, this article argues that it should be understood as a central component of contemporary responses to climate change. Safeguarding this right requires both preventing forced displacement and ensuring the material, environmental, and social conditions necessary for people to stay safely in their territories. This includes obligations related to climate mitigation and adaptation, as well as the protection of fundamental human rights such as the rights to life, health, housing, and cultural integrity.

Despite growing attention to climate-related displacement, reflected in instruments such as the Global Compact for Safe, Orderly and Regular Migration, policies specifically addressing immobility remain limited, even though immobility may be more prevalent than mobility in climate-affected contexts. ¹⁰ Concepts such as “trapped populations,” introduced by the International Organization for Migration, have drawn attention to those who are unable to move despite facing significant risks. ¹¹ However, this debate has largely focused on involuntary immobility, often overlooking voluntary immobility and the normative implications of protecting the decision to stay. ¹² This lack of political and legal attention exacerbates the impacts of climate-related immobility, leaving those affected to face the consequences of climate change without adequate support or normative recognition.

In this context, immobility cannot be analyzed solely as a failure of adaptation or as an absence of movement. ¹³ Instead, it must be understood through the lens of human rights and climate justice, taking into account the structural inequalities that shape individuals’ and communities’ capacity to decide whether to move or stay. ¹⁴ The distinction is therefore essential and situations in which mobility is constrained is therefore essential, as it directly affects the extent to which individuals can exercise meaningful choice.

From a climate justice perspective, this gap is particularly significant. Populations in the Global South, who have contributed least to greenhouse gas emissions, are often those most exposed to climate impacts and least able to move. ¹⁵ Their capacity to stay safely in place depends not only on local conditions but also on the fulfilment of obligations by States and actors with greater historical responsibility for climate change.

This article examines the right to stay within this broader framework. It first provides a concise overview of climate-related immobility, distinguishing between its different forms and underlying drivers. It then analyses the normative foundations of the right to stay within international human rights law and related legal frameworks. Finally, it explores the role of climate litigation in advancing the protection of this right, drawing on selected cases to assess both its potential and its limitations.

Methodologically, the article adopts a doctrinal and desk-based approach, based on the analysis of international legal instruments, policy frameworks, academic literature, and relevant judicial and quasi-judicial decisions. By integrating legal, environmental, and socio-cultural perspectives, it seeks to capture the multidimensional nature of climate-related immobility and the conditions under which the right to stay can be effectively protected.

Ultimately, recognising and operationalising the right to stay is essential not only for protecting individuals from forced displacement, but also for ensuring that staying in place does not become a condition of vulnerability, abandonment or exclusion. It entails not only respecting the decision not to migrate, but also protecting individuals from forced return to areas where climate impacts make a dignified life impossible. As climate change increasingly shapes the geography of human mobility, protecting the possibility of staying safely and with dignity must become an integral component of both climate governance and human rights protection. More fundamentally, the right to stay reflects a commitment to climate justice, highlighting both the unequal distribution of climate impacts and the differentiated responsibilities underlying them.

The concept of populations in situations of immobility

Initially, the concept of immobility was centered on the concept of “trapped population”, which first appeared in the Foresight Report on Migration and Global Environmental Change, ¹⁶ prepared by the Government of the United Kingdom. This report already warned that: “In the decades ahead, millions of people will be unable to move away from locations in which they are extremely vulnerable to environmental change. To the international community, this ‘trapped’ population is likely to represent just as important a policy concern as those who do migrate.” ¹⁷

Populations in situations of immobility are, therefore, a subset of non-migrant populations, who may be characterized by extremely low levels of economic, social, and political resources that limit their adaptive and resilient capacity. ²⁴ However, as Black et al. ²⁵ caution:

The notion of a ‘trapped population’ is not a straightforward one, in scientific terms, not least because it is difficult to distinguish, either conceptually or in practice, between those who stay because they choose to, and those whose immobility is in some way involuntary.

To highlight individuals who, while preferring to stay, lack the actual means to migrate, Schewel ²⁸ coined the term “acquiescent immobility,” emphasizing that such people can be as vulnerable as those who are involuntarily trapped. In this sense, immobility does not always reflect a free or desired decision but can also constitute a structurally imposed condition.

The concept of immobility can also extend to individuals in the early stages of displacement—those who do not wish to leave their homes—or to cases where, after being displaced, individuals wish to return but are unable to do so. The first situation, voluntary immobility, is linked to the right to stay, understood as the right not to be forcibly displaced and to stay in one's own territory despite climatic risks. The second, involuntary immobility, occurs when there is a desire to leave or return, but the necessary means or safety conditions are lacking. ²⁹

The Global Compact for Safe, Orderly and Regular Migration ³⁰ recognizes, in its Objectives 5 and 12, the situation of migrants trapped in crisis contexts in transit or destination countries, underscoring the need to ensure humanitarian assistance, consular protection, and international cooperation to mitigate their vulnerabilities.

In this regard, the Progress 2024 Report prepared by the International Organization for Migration (IOM) and Georgetown University ³¹ provides significant data: among those displaced by disasters for more than five years, 96% express the desire to stay where they are. Security is identified as the most decisive factor—71% of those who feel safe prefer to stay, while those who perceive insecurity tend to consider return. Moreover, livelihoods and access to employment emerge as key decision-making factors, particularly among those who have been displaced the longest.

These same factors—security, stability, and livelihood opportunities—are also decisive in staying in one's place of origin, whether voluntarily or involuntarily. According to the Intergovernmental Panel on Climate Change, ³² vulnerability to climate change is higher in regions affected by poverty, weak institutions, violent conflict, and dependence on climate-sensitive livelihoods. This intersection of environmental and social risks can erode community resilience and undermine adaptive capacity. ³³

Thus, exposure and sensitivity to the impacts of climate change directly influence the possibility of movement or permanence. Vulnerability and immobility are therefore deeply intertwined, creating a spiral in which lack of resources prevents migration while growing exposure increases risk. Often, displacement occurs only as a last resort, when conditions become unsustainable and institutional protection mechanisms are absent. ³⁴

Understanding and making visible the reality of populations in situations of immobility is essential for ensuring the protection of their rights and preventing humanitarian emergencies arising from climate change impacts—such as food insecurity, disease, or loss of livelihoods. ³⁵ However, identifying these populations remains a methodological and political challenge, particularly when immobility appears to be a voluntary choice. Hence, the urgency of integrating immobility into climate adaptation and migration protection policies, consistent with the principles of climate justice and human rights. ³⁶

Factors of climate-related immobility

As noted above, security, stability, and livelihoods are key factors both in preventing migration and in justifying the decision of populations to stay in their territories. However, in the context of the climate crisis, other elements must be considered, as they directly affect the capacity of individuals and communities to stay or move.

The risks and consequences of climate change disproportionately affect certain human groups and regions, representing a serious threat to their human rights, livelihoods, and cultural expressions. The impacts are particularly severe for populations living in low-lying small island developing states, Indigenous peoples, rural communities, women, persons with disabilities, and people living in poverty. ³⁷

The Intergovernmental Panel on Climate Change ³⁸ explicitly noted that:

People who are marginalized socially, economically, culturally, politically, institutionally, or otherwise are especially vulnerable to climate change.

As Von Schorlemer and Maus ⁴⁰ note:

Climate change is likely to affect cultural diversity and social interactions if communities are forced to alter their work habits and lifestyles, compete for resources, or migrate elsewhere.

It is therefore essential to examine these elements from the perspective of non-migration, considering their impact on immobility processes. Immobility itself generates new challenges for those staying in territories exposed to climate impacts, as it may increase vulnerability and reduce adaptive capacity. ⁴³

Among the factors of climate-related immobility, one can distinguish economic, social, cultural, and personal dimensions, which often overlap and reinforce one another, directly affecting security, stability, and livelihood opportunities. ⁴⁴

Of these, poverty is often the primary practical constraint on the exercise of the freedom of movement guaranteed by Article 13 of the UDHR. ⁴⁵ Individuals lacking economic resources, social networks, or institutional support may be unable to relocate or migrate, even when environmental conditions render their current location unsafe or unsustainable. While Article 13 establishes the formal right to move freely, structural inequalities such as poverty effectively limit the ability of many people to realize this right in practice.

Other social and personal factors—such as disability, age, or gender—also contribute to heightened vulnerabilities, intersecting with preexisting structural inequalities. ⁴⁶ In particular, women frequently face barriers in accessing resources and decision-making processes, limiting their adaptive capacity. ⁴⁷ Likewise, older adults or persons with disabilities may encounter physical or logistical obstacles that increase immobility. ⁴⁸

Cultural and social factors also play a key role in voluntary immobility, especially in Indigenous and rural communities, for whom staying in the territory is tied to ancestral roots, spirituality, and land stewardship. Such permanence can be understood as an exercise of the “right to stay” and the right not to be forcibly displaced, within the framework of climate justice. ⁴⁹

Understanding these factors, that condition immobility, is thus crucial for designing human rights-based adaptation policies, which recognize the situation of people and communities who stay—whether by choice or due to structural limitations—avoiding their invisibility in global responses to climate change.

Situations of population immobility due to the effects of climate change

Climate change not only drives human mobility but also generates situations of forced or voluntary immobility, in which individuals and communities stay in territories exposed to increasing environmental risks. This phenomenon, known as climate immobility, challenges the traditional view of environmental migration by highlighting those who, for economic, social, cultural, or political reasons, cannot or do not wish to move despite environmental degradation. Recent literature has recognized that these “trapped” populations represent a particularly vulnerable group, whose exposure to disasters and loss of livelihoods can exacerbate preexisting inequalities. ⁵⁰

Climate immobility thus poses a dual challenge: on the one hand, it requires revisiting legal and governance frameworks that have historically prioritized mobility and displacement as indicators of risk; on the other, it demands adequate protection and assistance mechanisms for those who remain in their places of origin, even when these increasingly become uninhabitable. This section examines the different forms of immobility—forced and voluntary—the factors that condition them, and the challenges their recognition poses for international law, adaptation policies, and climate justice.

The state duty to protect habitability and prevent displacement

Situations of immobility among populations affected by climate change are generally predominantly internal, as those affected stay within national borders and, therefore, under the jurisdiction and protection of the State. Consequently, immobile populations—whether voluntary or forced—are at the core of the State's duty to protect human rights. However, even when immobility occurs within national territory, international human rights law provides a relevant normative framework that defines the positive obligations of States regarding habitability, adaptation, and the prevention of displacement. ⁹⁸

States thus have international obligations to “address [climate-related] vulnerabilities in accordance with the principle of equality and non-discrimination.” ⁹⁹ These principles have been interpreted as requiring States to identify marginalized or vulnerable individuals and communities and “tackle underlying power imbalances and structural causes of ‘differential vulnerability’ within and between households.” ¹⁰⁰ In this way, it is possible to guarantee freedom of movement for those who choose to stay, those who cannot move, or those forced to leave their homes in contexts of climate impact. In particular, the “right to stay” is conceived as inherent to the right to freedom of movement. ¹⁰¹ However, this right can only be exercised if the place of residence does not become uninhabitable, directly connecting it to obligations regarding climate change mitigation and adaptation. From this perspective, the State duty is grounded in the protection of rights essential to a dignified life, including the rights to life, health, food, water, adequate housing, and a healthy environment. ¹⁰² Caney ¹⁰³ argues that there is a minimum moral threshold of habitability that obliges States to ensure the basic conditions necessary for people not to fall below a minimum standard of dignity and survival. In a climate context, extreme events (hurricanes, floods, cyclones) and slow-onset processes (droughts, salinization, coastal erosion) can erode habitability and compromise people's ability to stay safely in their homes. ¹⁰⁴

The UN Guiding Principles on Internal Displacement ¹⁰⁵ establish that States have a duty to prevent arbitrary displacement (Principle 6) and to protect people affected by natural disasters. Principle 6 expressly prohibits arbitrary displacement that removes people from their homes or habitual residences, except when security or health requires it, and imposes an obligation on the State to explore all viable alternatives before deciding on displacement. This formulation is essential for recognizing the right to stay as complementary to the right to freedom of movement. ¹⁰⁶

Similarly, the Pinheiro Principles on Housing and Property Restitution ¹⁰⁷ emphasize the obligation of States to protect the property, housing, and privacy rights of people affected by internal displacement, urging preventive and protective measures to avoid the loss of homes. Complementarily, the Península Principles ¹⁰⁸ provide a human rights framework applicable to climate displacement, reaffirming the need for States to guarantee participation and free, prior, and informed consent in relocation processes.

In contrast to the largely non-binding nature of many international frameworks, the Kampala Convention on the Protection and Assistance of Internally Displaced Persons in Africa (2009) ¹⁰⁹ represents a significant development as the first legally binding regional instrument addressing internal displacement. ¹¹⁰ including in the context of disasters and climate change. Article 4(4)(d) of the Kampala Convention requires States Parties to adopt measures aimed at preventing displacement arising from natural or human-made disasters and addressing their structural causes, including in contexts increasingly shaped by climate-related environmental change. It also requires States to protect and assist internally displaced persons and to promote durable solutions, including voluntary return, local integration, or relocation.

Importantly, the Kampala Convention reinforces the idea that displacement should be a measure of last resort, thereby implicitly supporting the conditions under which individuals and communities may stay in place safely. In this sense, it provides a concrete legal foundation for linking State obligations on disaster risk reduction, climate adaptation, and human rights protection with the emerging concept of a “right to stay.”

The effectiveness of the right to stay depends on States fulfilling a positive obligation to protect the habitability of the territory. It is not enough to refrain from expelling people; it is necessary to guarantee material and environmental conditions so that staying does not become a form of exclusion. ¹¹¹ This implies active policies of adaptation, risk reduction, and environmental justice.

The Sendai Framework for Disaster Risk Reduction ¹¹² reinforces this approach by establishing that each State has the primary responsibility to prevent and reduce disaster risks through preparedness, mitigation, and institutional strengthening. Its guiding principle is clear: disaster risk management must focus on protecting people, their livelihoods, health, and environment while fully respecting human rights.

Inter-American jurisprudence has reinforced this framework. In Comunidad Mayagna (Awas Tingni) vs. Nicaragua (2001) and Pueblo Saramaka vs. Suriname (2007), ¹¹³ the Inter-American Court of Human Rights extended protection of the collective property right (art. 21 ACHR) to natural resources linked to Indigenous ways of life, affirming that their loss compromises physical and cultural survival. ¹¹⁴ This doctrine consolidates the legal basis of the right to stay in terms of self-determination and cultural continuity. ¹¹⁵ Most recently, The Inter-American Court of Human Rights (IACtHR) has addressed the issue of “trapped populations” in the context of climate change. In its Advisory Opinion OC-32/2025, the Court acknowledged that climate-induced displacement and immobility disproportionately affect vulnerable groups, including Indigenous peoples, women, and rural communities. The Court emphasized that States have specific obligations to prevent and mitigate the impacts of climate change, ensuring the protection of human rights for those who are unable to migrate due to environmental, economic, or social constraints.

However, so far, normative progress contrasts with the limited incorporation of community land management into national climate policies. According to Rights and Resources Initiative, ¹¹⁶ only 13% of national adaptation plans explicitly recognize collective tenure rights, highlighting a structural gap between international commitments and effective State action.

State responsibility to protect habitability and prevent displacement implies an active and multidimensional duty. States must ensure that people can stay in their territories safely, with dignity, and on a sustainable basis through environmental protection, disaster risk reduction, climate adaptation measures, and the effective realization of economic, social, cultural, and environmental rights. The right to stay cannot be realized in the absence of a habitable environment: its effectiveness therefore depends on State action to prevent and address environmental degradation.

The Human Rights Committee has affirmed that the obligation to protect the right to life extends beyond protection against arbitrary deprivation of life and includes addressing the general conditions that may prevent individuals from living with dignity, including environmental degradation and the loss of access to land and natural resources. ¹¹⁷ Accordingly, Article 6 of the International Covenant on Civil and Political Rights entails positive obligations of prevention, mitigation, and adaptation in relation to reasonably foreseeable climate risks.

While certain human rights frameworks require that risks to reach a threshold of seriousness—often formulated as a “real and imminent” threat to life—this does not exhaust the scope of State obligations. In the jurisprudence of the European Court of Human Rights, Article 2 ECHR has generally been interpreted as requiring the existence of a real and immediate risk to life in order to trigger positive protective obligations. ¹¹⁸ However, the Human Rights Committee has adopted a broader and more preventive understanding of the right to life. In its General Comment No 36, the Committee clarified that environmental degradation, climate change, and unsustainable development constitute among the most pressing threats to the ability of present and future generations to enjoy the right to life. ¹¹⁹ This approach was further developed in Teitiota v. New Zealand, where the Committee recognized that the adverse effects of climate change and sea-level rise may expose individuals to violations of the right to life before the risk becomes imminent in the traditional sense. ¹²⁰ Although the Committee concluded that the threshold of risk had not yet been reached in the specific circumstances of the case, it emphasized that foreseeable environmental harm may engage State responsibility where adequate mitigation and adaptation measures are not adopted. ¹²¹ Consequently, climate-related displacement should not be understood solely as the product of environmental processes, but also as a potential consequence of State omissions in preventing foreseeable risks and maintaining conditions compatible with a life of dignity. ¹²²

Accordingly, while climate science enables the identification of foreseeable risks, human rights obligations cannot be confined exclusively to situations of immediate danger. Slow-onset processes such as sea-level rise, ecosystem degradation, desertification, or resource depletion may progressively undermine the conditions necessary for a dignified life, thereby engaging State responsibility long before harm materialize as an imminent threats.

The right to stay can further be understood within the broader framework of Article 12 of the ICCPR. It operates as a corollary of the freedom to choose one's residence under Article 12(1), and is closely connected to the right to freedom of movement under Article 12(2). From this perspective, the right to stay does not oppose mobility rights; rather, it complements them by protecting individual and collective spatial autonomy in both movement and non-movement. Within a mobility justice framework, this underscores that both staying and moving are expressions of agency that require protection under conditions of structural inequality.

As Avner De Shalit ¹²³ argues, the right to stay embodies a principle of intergenerational environmental justice, insofar as protecting a place means safeguarding the possibility of life for both present and future generations. State responsibility in the context of climate change therefore extends beyond preventing forced displacement. It also encompasses the duty to preserve the environmental, social, and material conditions that enable individuals and communities to stay in their territories in safety, dignity, and continuity.

Limits and tensions in the operability of the right to stay

The right to stay provides a valuable normative and ethical framework for recognizing people's right to stay in their territories in the face of climate risks, but its scope and practical application face significant structural, political, and legal limitations that hinder its full realization. While this right emerges as an ethical and legal response to forced mobility and loss of habitability due to climate change, its effectiveness depends on institutional, economic, and environmental conditions not always guaranteed by States. The general lack of legally binding mechanisms, the fragmentation of the international protection regime, the tension between State sovereignty and human rights obligations, and North–South inequalities in climate financing create a scenario in which the right to stay remains more of a normative aspiration than an enforceable right. Therefore, it is necessary to highlight the main tensions that hinder its practical operability and the challenges posed by its effective incorporation into national and international protection frameworks.

First, a fundamental tension arises in situations where inhabitants face imminent threats to life or physical integrity. While States have a duty to protect human life, this duty is not absolute. There is the question of the extent to which a State can support people in exercising the right to stay in conditions of extreme risk. The answer is not straightforward, as State duties are not absolute. Evacuation or relocation may be necessary in extreme circumstances, but must always respect human rights and include safeguards such as consultation and participation of affected communities. The UN Guiding Principles on Internal Displacement, particularly Principle 6, ¹²⁴ prohibit arbitrary displacement and establish that displacement may only be justified under specific conditions. In the context of disasters, these conditions relate to situations where the safety, health, or other fundamental rights of those affected are at risk. While the Principles do not explicitly impose a general legal duty on States to prevent displacement, they provide an important normative framework for assessing when displacement is permissible and when it becomes arbitrary. In this sense, they implicitly highlight the importance of ensuring that decisions to stay in place are voluntary and informed, and that individuals are not compelled to move—or to stay—under conditions that undermine their fundamental rights. Accordingly, in the context of climate change, these Principles can be interpreted as supporting the need for both protective measures against arbitrary displacement and adequate safeguards for those who stay in high-risk areas. This includes ensuring minimum standards of life, health, and dignity, particularly in disaster-related contexts where the risks of forced displacement are heightened.

Second, there is the issue of the protection threshold and proof of personal risk. International jurisprudence shows that the threshold of personal risk required to trigger State obligations is high: it is not enough to demonstrate that a country faces generalized environmental deterioration, the affected person must prove a concrete and imminent risk. In Teitiota v New Zealand, ¹²⁵ the applicant argued that rising sea levels in Kiribati posed an imminent threat to life and that staying in the country would violate his rights under the ICCPR. The Committee acknowledged that climate change creates serious threats but concluded that the risk was not sufficiently immediate to obligate New Zealand to provide protection through resettlement.

This judgment reflects a broader pattern in climate-related human rights litigation: courts often require a direct, individualized, and imminent risk rather than generalized environmental threats. While legally precise, this standard constrains the enforceability of the right to stay, as many climate impacts are progressive, cumulative, and spatially diffuse. As a result, the judicial recognition of the right to stay may remain limited to extreme cases, leaving populations exposed to foreseeable but less immediate risks without protection.

Another major tension lies in the intersection of the right to stay and State sovereignty. States may resist recognizing binding climate protection obligations for political, economic, or institutional reasons. National courts are often reluctant to impose duties that could constrain territorial sovereignty, regulate internal resource allocation, or mandate resettlement programs. ¹²⁶ In such contexts, questions of international liability for omission arise, particularly where foreseeable harm results from governmental inaction. ¹²⁷ The jurisprudence demonstrates that while the right to stay can frame claims for protection, its realization often depends on the willingness of States to reconcile sovereignty with human rights duties.

Finally, limited State capacity constitutes another significant tension. Many countries, particularly in the Global South, lack sufficient technical, financial, or institutional resources to ensure climate adaptation, internal relocation, or improvement of habitability conditions. ¹²⁸ Consequently, even where the right to stay is normatively recognized, practical enforcement may fail, underscoring the gap between formal recognition and effective protection, compromising the effective protection of vulnerable populations. As will be analysed in the next section, climate litigation can play a crucial role in highlighting these gaps and exerting pressure for policy change; however, courts alone cannot address the underlying structural and financial constraints that limit the effective realization of the right to stay.

Consequently, the right to stay faces a delicate balance between individuals’ autonomy to stay in their territory, the State's duty to protect life and health, and existing material and legal limitations. The tension between human rights, State sovereignty, and institutional capacity shows that guaranteeing the ability to stay in the face of climate risks requires not only normative recognition but also resources, planning, and international cooperation to make this right effective and realistic.

Taken together, these examples demonstrate that the operability of the right to stay is constrained by four interrelated factors: (a) the necessity to evacuate in extreme risk scenarios; (b) the high threshold of proof required to establish personal risk; (c) tensions with State sovereignty; and (d) limited State capacity. These limitations highlight that, although the normative framework recognizes the right to stay, its effective guarantee depends on political will, institutional capacity, resource availability, and judicial interpretation of risks and responsibilities. Cases such as Teitiota v New Zealand illustrate the difficulty of translating ethical and normative principles into enforceable legal obligations, particularly under current human rights and climate law frameworks. Nonetheless, climate litigation becomes particularly relevant as a tool to make violations visible, demand State obligations, and explore avenues for judicial protection of populations at risk, even though courts alone cannot overcome the underlying structural and financial constraints. While jurisprudence underscores the challenges of operationalizing the right to stay, it also identifies critical pathways for its realization, including the development of legal standards for climate risk, recognition of cumulative and progressive threats, and alignment of State obligations with human rights, disaster risk reduction frameworks such as the Sendai Framework, ¹²⁹ and international climate commitments. The following section will focus precisely on analyzing how national and international courts have addressed these issues, highlighting both their potential and limitations in guaranteeing the right to stay in an environmental crisis context.

Operationalizing the right to stay: Lessons from climate litigation

The consolidation of the right to stay as an emerging category within international human rights law and environmental law cannot be understood separately from the phenomenon of climate litigation. In recent years, national and international courts have become key arenas for holding States and companies accountable for taking effective action against climate change, as well as for reinterpreting traditional human rights—such as life, health, housing, food, and a healthy environment—in light of the ecological crisis. While most of these cases have focused on emission mitigation or general environmental protection, their development has opened an incipient jurisprudential pathway for protecting individuals and communities wishing to stay in their territories. In this sense, climate litigation represents a field of intersection between State responsibility for climate inaction and the enforceability of the right to stay, highlighting that environmental degradation not only drives forced mobility but also threatens the rights of those who choose not to move. ¹³⁰

In practice, this issue has been addressed in significant climate-related litigation linking climate change, displacement risk, and State interventions to preserve habitability. For example, in 2005, Inuit communities filed a petition before the Inter-American Commission on Human Rights (IACHR), alleging that U.S. greenhouse gas emissions contributed to climate change impacts threatening their livelihoods, culture, and physical environment in the Arctic. Although the petition was ultimately dismissed due to evidentiary challenges—particularly difficulties in establishing a direct causal link between specific emissions and localized harms, often referred to as the “drop in the ocean” argument—the case played a significant normative role. In particular, it framed climate change as a human rights issue and highlighted how insufficient mitigation efforts could lead to the degradation of essential living conditions, thereby increasing the risk of displacement. Moreover, it underscored the importance of adaptation measures to preserve the habitability of affected territories, protect cultural continuity, and prevent situations in which communities might be compelled to leave their lands. In this sense, the Inuit petition contributed to an emerging understanding that both mitigation and adaptation are essential to safeguarding vulnerable populations from climate-induced displacement. ¹³¹

In Teitiota v. New Zealand, ¹³² the Committee recognized that environmental degradation induced by climate change can create real risks to the right to life, although it found that in this case the threshold of imminence had not yet been reached. Nevertheless, the ruling opened the door to future claims based on serious environmental risks as a basis for international protection. ¹³³ Tribal communities in Alaska and Louisiana also submitted a complaint in 2020 to the UN Special Rapporteurs on the Human Rights of Internally Displaced Persons and on the Rights of Indigenous Peoples, drawing attention to the impacts of sea-level rise, coastal erosion, and environmental degradation on their territories and ways of life. ¹³⁴ The complaint urged the United States to allocate funding to restore tribal lands and subsistence resources, support communities seeking to stay in place despite increasing climate risks, and assist those already facing relocation. ¹³⁵

Although the communication did not result in a binding decision, it triggered engagement from the Special Rapporteurs, who acknowledged the concerns raised and incorporated them into broader thematic reports on climate change, displacement, and the rights of Indigenous Peoples. ¹³⁶ In doing so, the case contributed to reinforcing the recognition that slow-onset climate processes can give rise to internal displacement and threaten the cultural survival of Indigenous communities. ¹³⁷

Importantly, the complaint highlighted the dual dimension of State obligations: not only to support planned relocation where necessary, but also to ensure adequate adaptation measures that enable communities to stay safely in their territories where possible. ¹³⁸ It thus underscored the need for participatory, rights-based approaches that respect Indigenous self-determination and prioritize both the protection of ancestral lands and the preservation of cultural identity. ¹³⁹ In this sense, even in the absence of formal adjudication, the complaint played a normative role in advancing the understanding of climate-related displacement and the conditions under which a “right to stay” can be meaningfully protected. ¹⁴⁰

The case Billy et al. v. Australia ¹⁴¹ was filed in 2019 by Daniel Billy and other Indigenous residents of Boigu, Poruma, Warraber, and Masig via a complaint to the UN Human Rights Committee, alleging that Australia failed to adopt adequate climate adaptation measures. The Committee recognized that the State's inaction violated the right to private and family life under Article 17 of the ICCPR and the right to enjoy their culture, noting that climate change threatened the habitability of their islands and the well-being of their marine ecosystems. This ruling constitutes a milestone by recognizing State responsibility for omission in climate protection, highlighting the importance of legal and policy strategies to make climate risks visible and protect fundamental rights, reinforcing the idea that habitability and the prevention of displacement are substantive components of the right to a dignified life.

A complementary case is Pabai Pabai v. Commonwealth of Australia, filed by Indigenous leaders from the Torres Strait Islands. This case sought to require the Australian government to protect ancestral lands against sea-level rise and environmental erosion. Despite scientific evidence and the severity of the risk, the Federal Court of Australia refused to recognize a duty of care based on civil liability, arguing that these matters fell within government policy rather than judicial jurisdiction. Although adverse, the ruling highlights two key points: first, the gap between moral responsibility and legal remedy, especially in common law systems; and second, the resilience of Indigenous legal strategies in making climate risks visible and pressing for legislative or policy solutions. Like other national climate litigation, Pabai Pabai shows the structural limitations of judicial litigation in addressing climate-induced displacement but emphasizes the importance of combining legal approaches with political and community action. ¹⁴²

The complaint argued that the Australian government violated the human rights of Torres Strait Islander peoples by failing to adopt adaptation measures, including improving island levees and reducing greenhouse gas emissions. The Human Rights Committee recognized that Australia had not adequately protected the island inhabitants from climate change effects, thus violating their right to enjoy their culture and their right to a private and family life free from arbitrary interference. The Committee also acknowledged that climate change affected the daily lives of the claimants, that government inaction constituted a rights violation, and therefore urged Australia to adopt climate adaptation measures to protect the human rights of islanders. The Committee stated:

3.5. The minority culture of the authors depends on their islands continuing to exist and be habitable, as well as on the health of the surrounding marine ecosystems. Climate change is already endangering the authors’ traditional way of life and threatens to displace them from their islands, which would cause enormous and irreparable harm to their enjoyment of culture.

In Latin America, in April 2024, Colombia set a significant jurisprudential precedent by recognizing internal forced displacement induced by environmental factors, including those related to climate change. In the case of an elderly rural farmer couple displaced by floods from the Bojabá River, the Constitutional Court held that the Colombian State has specific obligations before, during, and after displacement due to environmental causes. ¹⁴⁴ This ruling is a milestone in Latin American jurisprudence, explicitly incorporating the environmental dimension into the conceptualization of internal forced displacement and recognizing that extreme climate events can cause human rights violations comparable to those produced by armed conflicts or structural violence. ¹⁴⁵

The Court emphasized that, although Colombian legislation provides certain measures of attention and protection for internally displaced persons (Law 387 of 1997; Law 1448 of 2011), these are insufficient in the face of increasing natural disasters and climate impacts, highlighting the need to strengthen mechanisms for prevention, assistance, and rights protection of affected populations. ¹⁴⁶ The ruling also underscores the State's obligation to guarantee habitability, safety, subsistence, and access to basic services, principles aligned with the UN Guiding Principles on Internal Displacement and international human rights standards. ¹⁴⁷

This Constitutional Court ruling not only broadens the understanding of the causes of forced displacement but also establishes a framework of progressive State responsibility in response to climate change, emphasizing the need for comprehensive adaptation, mitigation, and protection policies for vulnerable populations. ¹⁴⁸

The climate litigation cases discussed—Inuit v. U.S., Torres Strait Islanders v. Australia, Pabai Pabai v. Commonwealth of Australia, Benito Oliveira et al. v. Paraguay, and Colombian jurisprudence on environmental displacement—demonstrate that climate change impacts not only generate forced displacement but also challenge the right to stay, understood as the choice of individuals to stay in their homes and territories without being forced to migrate. ¹⁴⁹ These cases reveal two dimensions of the right to stay: protection against the impossibility of stay and recognition of the voluntary choice to stay.

Regarding protection against the impossibility of staying, in the cases of the Torres Strait Islanders and Pabai Pabai, sea-level rise and environmental erosion threatened the habitability of their islands. The lack of State adaptation measures violated their right to a dignified private, family, and cultural life, demonstrating that the right to stay directly depends on the existence of habitable and safe conditions. ¹⁵⁰ Similarly, Benito Oliveira v. Paraguay demonstrated that the loss of traditional lands and the impact on community well-being constituted a violation of the right to home and private life, underscoring that protection against climate impacts is an essential component of the right to stay. ¹⁵¹

Regarding the recognition of the voluntary choice to stay, Colombian jurisprudence on flood-induced displacement from the Bojabá River shows that staying in one's territory is not only an act of cultural or social resistance but a right supported by State obligations of prevention, protection, and adaptation. ¹⁵² This approach aligns with the doctrine that the right to stay entails freedom to choose where to live without being forced to leave, and that its exercise requires States to guarantee habitability, subsistence, and safety. ¹⁵³

Together, this litigation shows that State inaction or inadequacy in the face of climate risks not only violates traditional human rights, such as private, family, and cultural life, but also limits the option to stay, turning immobility into a forced or risky situation. Thus, the right to stay emerges as a fundamental right integrating protection against forced displacement and ensuring conditions that allow people to stay safely and with dignity. ¹⁵⁴

In this sense, climate litigation not only seeks environmental mitigation and adaptation but also strengthens the legal conceptualization of the right to stay, highlighting the interdependence of human rights, territorial security, community resilience, and climate adaptation policies. Therefore, courts and international mechanisms should consider this right as central to protecting vulnerable populations in the climate crisis, integrating preventive, adaptive, and cultural measures.

Nevertheless, despite advances in climate litigation, the effective protection of the right to stay faces multiple limitations operating at different levels: legal, evidentiary, structural, enforcement, and international normative.

First, legal and jurisdictional limitations significantly restrict judicial intervention, particularly through the application of the “political question” doctrine. In many common law systems, courts are reluctant to adjudicate claims that require assessing complex policy choices involving resource allocation, long-term planning, or climate governance, considering such matters to fall within the exclusive competence of the executive or the legislature rather than the judiciary. ¹⁵⁵ Climate adaptation measures—such as coastal protection, relocation strategies, or large-scale infrastructure investments—are often framed as discretionary policy decisions, thereby shielding them from judicial review.

This approach was clearly illustrated in Pabai Pabai v. Commonwealth of Australia, where the Federal Court declined to recognize a duty of care under tort law, holding that the protection of ancestral lands against sea-level rise involved political and policy judgments beyond the proper role of the courts. ¹⁵⁶ By invoking institutional competence and separation of powers, the Court treated climate adaptation and territorial protection as non-justiciable matters, despite the foreseeable and severe risks to the habitability of Indigenous lands.

The application of the political question doctrine has direct implications for the operability of the right to stay. By characterizing climate adaptation and risk prevention as matters of governmental discretion, courts limit their ability to scrutinize State omissions that effectively undermine individuals’ capacity to stay safely in their territories. ¹⁵⁷ This judicial restraint shifts the burden of protection onto political processes that often fail to adequately address the needs of vulnerable populations, particularly Indigenous and marginalized communities.

This limitation is further compounded by the absence of specific international legal instruments recognizing the right to stay as an autonomous right. As a result, courts are compelled to protect it indirectly, by linking it to established rights such as the right to life, housing, private and family life, culture, or security. ¹⁵⁸ While this interpretative strategy allows for partial protection, it also fragments legal reasoning and weakens the normative clarity of the right to stay, making its judicial enforcement contingent on evolving interpretations rather than on explicit legal recognition.

Second, evidentiary challenges and establishing causation represent a critical obstacle. Litigation seeking to hold a State accountable for global climate impacts, such as the Inuit v. United States case, has been dismissed due to the inability to demonstrate a direct causal link between national policies and local effects on affected communities. ¹⁵⁹ This problem is further compounded by by the legal standard of “imminence,” which requires claimants to demonstrate that harm is immediate in order to trigger protection. As illustrated by the Human Rights Committee in Teitiota v New Zealand, although sea-level rise and environmental degradation posed serious threats to life and habitability, the Committee found that the risk was not sufficiently imminent to engage the State's obligations. Scholars have noted that such legal thresholds often disadvantage populations who stay in place, as rights protection tends to focus on urgent or already displaced individuals, leaving those experiencing gradual climate-related risks in a precarious legal position. ¹⁶⁰

At structural and social levels, climate litigation faces significant obstacles stemming from inequality and limited access to legal representation. Vulnerable populations—including Indigenous communities, women, the elderly, and persons with disabilities—often encounter multiple barriers: they may lack specialized legal counsel familiar with climate and human rights law, be unable to afford court fees, or struggle to navigate complex procedural requirements. ¹⁶¹ Moreover, prolonged judicial timelines and procedural delays exacerbate these challenges, as climate risks such as sea-level rise, flooding, or extreme weather events advance more rapidly than court processes. Consequently, the right to stay may be effectively undermined before any judicial remedy is rendered, leaving populations exposed to climate impacts despite normative recognition of their entitlements. ¹⁶²

Even when favorable rulings are obtained, enforcement presents limitations. Implementing adaptation and mitigation measures depends on political will, budget availability, and State technical capacity. Courts may recognize obligations, but these do not always translate into effective protection of territory, infrastructure, or natural resources essential for people to stay safely in their homes. ¹⁶³

Finally, climate litigation faces limitations in international scope. Most international instruments addressing displacement and human rights, such as the Guiding Principles on Internal Displacement or the Human Rights Committee's General Comments, are non-binding and do not directly require States to guarantee the right to stay. This normative fragmentation means that each litigation case is treated in isolation, without a global framework to systematically protect people from climate risks.

Together, these limitations show that, while climate litigation can make risks visible, pressure States, and strengthen the protection of cultural and territorial rights, it does not effectively guarantee full exercise of the right to stay. Evidence suggests that only the combination of judicial strategies, public policies, international cooperation, and strengthening community resilience can provide more robust protection against climate-induced displacement. ¹⁶⁴

Conclusions

Climate change generates both human mobility and immobility, exposing populations to varying degrees of vulnerability depending on socioeconomic, cultural, and environmental factors. The concept of the “right to stay” provides a critical framework to recognize and protect the choice of individuals and communities to stay in their territories despite climate risks. This right encompasses two complementary dimensions: protection against the impossibility of staying due to environmental hazards, and recognition of voluntary immobility as a legitimate expression of autonomy, cultural continuity, and social resilience.

Ensuring the right to stay requires comprehensive strategies that go beyond non-interference. States must adopt proactive policies addressing habitability, disaster risk reduction, and climate adaptation. This includes engaging affected communities—particularly women, Indigenous peoples, and other marginalized groups—in decision-making processes, guaranteeing access to information, technical support, and financial resources, and exploring all feasible alternatives before resorting to relocation. Integrating the right to stay into national climate policies, Nationally Determined Contributions (NDCs), and broader international climate action is crucial to prevent forced displacement while reinforcing resilience at the local level.

Climate litigation has emerged as a tool to make climate risks visible, hold States accountable for omissions, and strengthen cultural and human rights protections. Cases such as Teitiota v. New Zealand, Billy et al. v. Australia, Pabai Pabai v. Commonwealth of Australia, and Colombian jurisprudence on flood-induced displacement illustrate both the potential and the limitations of judicial interventions. While these rulings acknowledge state responsibility and the human rights dimensions of climate impacts, enforcement is often constrained by legal, evidentiary, structural, and jurisdictional barriers. This demonstrates that litigation alone cannot guarantee the effective implementation of the right to stay; it must be complemented by public policy measures, international cooperation, and the promotion of community resilience.

From a climate justice perspective, recognizing and protecting the right to stay highlights the differentiated responsibilities of States and actors contributing disproportionately to climate change. Vulnerable populations, especially in the Global South, are often unable to move due to socioeconomic constraints, and thus depend on the fulfillment of positive obligations by high-emitting states. Protecting the right to stay is therefore inseparable from broader efforts to address loss and damage, reduce inequality, and uphold human rights in the context of climate change.

Ultimately, the right to stay constitutes a fundamental human right. It integrates protection against forced displacement, guarantees safe and dignified living conditions, and respects the voluntary choice to stay. Its recognition and operationalization within legal frameworks, public policies, and international instruments are essential to safeguard populations exposed to climate risks and to strengthen adaptive capacity, resilience, and community agency. While international jurisprudence and policy developments demonstrate early progress, significant gaps remain, underscoring the need for continued normative, institutional, and practical advances to make the right to stay fully effective in a climate emergency.