Reparation for Climate Change: The Successes and Limits of Litigation

Helen Keller and Corina Heri

Introduction

1.Climate Risks Are a Reality

This chapter was written after the end of another year of record-breaking meteorological observations.¹ The global average temperature in 2024 rose by over 1.6° Celsius (C) above pre-industrial levels,² thereby making this year the new record-holder after 2023.³ In its most significant contribution on the topic of climate risks and impacts to date, Working Group II of the Intergovernmental Panel on Climate Change (IPCC) noted in 2022 that, since its previous assessment eight years ago, climate risks are appearing faster and will get more severe sooner.⁴ With respect to near-term risks, this 2022 report noted that global warming reaching 1.5°C would cause “unavoidable increases in multiple climate hazards and present multiple risks to ecosystems and humans.”⁵

While the IPCC’s report discusses impacts and risks in general, advances in attribution science have made it possible to link individual extreme events like forest fires, cyclones and heatwaves to climate change. From the 2019–2020 bushfire in Australia to the 2025 wildfire disaster in California in the United States,⁶ it has been shown that climate change increases the risk of such events.⁷ In a similar vein, scientists were able to quantify that more than half of the over 68,000 heat-related deaths that took place in Europe during the summer — S. 2 —of 2022 would not have occurred without anthropogenic global warming.⁸ Another attribution study estimated that about 4 billion USD in damage caused by Typhoon Hagibis in 2019 could be attributed to climate change.⁹

Today, climate risks are an undeniable reality. As climate litigation proliferates across fora and jurisdictions, litigation seeking reparations for climate harms stands out as a new frontier. Before introducing how this topic will be addressed in the present volume, the present introduction briefly reflects on the evolution of climate law, progress in climate action, and climate litigation over the years, given how interconnected these topics are with the themes explored in this volume.

2.Climate Law and Action: Our Collective Progress Report

The ultimate objective of the 1992 United Nations Framework Convention on Climate Change (UNFCCC),¹⁰ the first international treaty addressing the risks of climate change, was described as the “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.”¹¹ The treaty’s focus was on risk mitigation, and a proactive effort by the Alliance of Small Island States (AOSIS) to insert a provision on a legal mechanism for dealing with loss and damage should these risks materialize¹² was unsuccessful. Climate mitigation, equitable principles for burden sharing and the freedom of developing countries to develop occupied the center stage of the negotiations.

Over the years, the UNFCCC’s supreme decision-making body, known as the Conference of Parties (COP), has been adopting decisions for the effective implementation of this treaty. Through these decisions, which responded to the latest scientific findings of the IPCC, the ultimate objective mentioned above became more specific.¹³ During the 15th COP held in 2010 in Copenhagen, — S. 3 —parties to the UNFCCC reached a consensus that the treaty’s ultimate objective could be expressed in terms of a negative temperature target (ie a threshold that must not be crossed) of avoiding a global average temperature increase of 2°C above pre-industrial levels. The Copenhagen Accord invited parties to submit pledges for GHG emission reductions, and called for a periodic review to consider “strengthening [this] long-term goal” considering scientific findings “in relation to temperature rises of 1.5 degrees Celsius.”¹⁴ Recognizing the risk of catastrophic levels of harm which would follow upon exceeding 1.5°C, the 21st COP in Paris concluded the following as the goal of the 2015 Paris Agreement:

Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change.¹⁵

Notwithstanding the variance in the language surrounding the two temperature targets, we at least have internationally agreed upon anchors based on which the adequacy of states’ mitigation pledges can be evaluated. This made headway in the development of international climate law. As concerns efforts to meet the UNFCCC’s ultimate objective, however, collective progress thus far paints a less rosy picture. In 2023, the United Nations Environmental Programme (UNEP) gave an apt title to its annual assessment report on the gap between countries’ greenhouse gas (GHG) emissions reductions pledges, their Nationally Determined Contributions (NDCs), and the emissions reductions required to avoid reaching the 2°C temperature threshold by the end of the century: Broken Record. The Anthropocene had just witnessed record-breaking numbers in terms of rises in temperature and concentrations of GHG emissions. And like a broken record, the UNEP was forced to tell the same story as it did in its previous emissions gap reports, namely that current policies point to a temperature rise above 2°C by the end of the century. In writing this introduction, and although we risk sounding like a broken record ourselves, we must reiterate that the need for an interdisciplinary discussion on solutions to the problems posed by climate change is more pressing than ever.

Under the international climate treaty regime, discussions on solutions are organized around three pillars of climate change law and governance, viz. ‘mitigation,’ ‘adaptation’ and ‘loss and damage’ (L&D), which we can view as — S. 4 —three ramparts in a fortress.¹⁶ As discussed above, the outermost rampart of mitigation has not progressed to the point required to stave off the fundamental threats posed by climate change. Although the ambitiousness of states’ mitigation commitments is ramping up,¹⁷ the pace is frustratingly slow relative to the climate disaster that we are barreling towards. While the story of institutional response to climate change has been framed in different ways,¹⁸ it has primarily been one of institutional failure.¹⁹ The states most vulnerable to the adverse impacts of climate change, concerned individuals and civil society may lack the means to bring about direct change. However, they have increasingly resorted to climate litigation to boost their odds in the fight against institutional failures and political deadlock.²⁰ More and more national and international climate litigation has been occurring over the last two decades, with increasing diversity in the nature of the legal claims being brought.²¹

3.Climate Litigation

The latest developments from across several jurisdictions show that courts are increasingly asserting their role in adjudicating issues related to climate change. Amongst the most high-profile examples of this is the European Court of Human Rights (ECtHR), which endorsed the view jointly expressed by UN Special Rapporteurs and a UN Independent Expert²² that “the question is no longer whether, but how, human rights courts should address the impacts of environmental harms on the enjoyment of human rights.”²³ KlimaSeniorinnen and Others v Switzerland became the first case in the category of litigation against — S. 5 —states on the issue of climate change mitigation where an international court found a breach of international obligations. The ECtHR recognized that Contracting States must take measures for the substantial and progressive reduction of GHGs,²⁴ supplemented with adaptation measures aimed at alleviating the most severe or imminent consequences of climate change,²⁵ as part of their positive obligations under the European Convention of Human Rights (ECHR).

While there are no inter-state contentious cases on the issue of climate change yet, four international courts have also been asked to issue advisory opinions on the content of climate change-related obligations. While the Inter-American Court of Human Rights (IACtHR),²⁶ the International Court of Justice (ICJ)²⁷ and the African Court on Human and Peoples’ Rights (ACtHPR)²⁸ were yet to reply to these requests at the time of writing (concluding on 30 June 2025), the International Tribunal for the Law of the Sea (ITLOS) issued an advisory opinion at the request of the Commission of Small Island States on Climate Change and International Law (COSIS) in 2024. The Tribunal replied unanimously that anthropogenic GHG emissions into the atmosphere fall under the definition of “pollution to the marine environment”²⁹ in Article 1(1)(4) of the 1982 UN Convention on the Law of the Sea (UNCLOS), that Article 194(1) of the UNCLOS provides for “specific obligations to take all necessary measures to prevent, reduce and control marine pollution from anthropogenic GHG emissions and to endeavor to harmonize their policies in this connection,”³⁰ and that more stringent due diligence obligations exist in respect of the obligation to prevent transboundary damage due to pollution from sources of GHG emissions within states parties’ territories under Article 194(2) of the UNCLOS.³¹

The climate advisory opinion request to the ITLOS did not mention reparations, but instead focused on the scope of preventive and protective — S. 6 —obligations under the UNCLOS.³² By contrast, the requests to the IACtHR and ACtHPR both referenced the need to clarify legal obligations around reparation.³³ The clearest focus on reparations was made in the request to the ICJ, which particularly foregrounds the need for advice as to the legal consequences of breaches of climate change-related obligations which have caused “significant harm to the climate system and other parts of the environment.”³⁴ Reparations for climate change-related L&D have been a contested issue in the hearings before the ICJ, with for example the Nordic countries rejecting climate reparations as a non-starter due to the implausibility of the requirements of state responsibility being met.³⁵ A majority of the written submissions from states address “compensation,”³⁶ with vulnerable countries emphatically arguing in support of compensation as necessarily forming part of the reparations to be borne by states responsible for breaching international law through their climate contributions.

On the domestic level, there is also an increase in cases against corporations responsible for the emission of large proportions of GHGs, seeking to hold them liable for not having performed their duty to mitigate the GHG emissions under their control, or for causing climate-related L&D.³⁷ These cases are yet to result in judgments where a corporation is ordered to take remedial measures or pay damages for the costs of adaptation or for climaterelated L&D. Beyond high-profile cases such as for example the Dutch Milieudefensie case,³⁸ which is discussed at length by Valentin Jentsch in chapter 15 of this volume, there are several cases at lower levels of governance, for example challenging environmental permits, which are arguably equally important but fly under the radar.³⁹

4.Litigating for Climate Reparations

In light of these developments and acknowledging the emerging discourse on litigation seeking reparations for climate-related L&D, the present volume invites legal scholars with expertise in different disciplines to reflect on the idea of “successful” climate litigation. This prompts consideration of different kinds of questions. What outcomes can we realistically expect from individual cases of climate litigation on the one hand, and from climate litigation as a “movement” on the other? Does success necessarily hinge on the remedies that courts can order? And importantly, can these remedies encapsulate reparations for climate-related L&D? Furthermore, an evaluation of prospects without consideration of the costs entailed in the pursuit of successful climate litigation is half-baked. So, can climate litigation integrate concerns of global distributive injustices, the vulnerabilities of certain groups of persons, ecocentrism, and effects on the (international) rule of law? Can courts ensure reparations for the wrongs entailed in states’ and corporations’ contributions towards climate change, or do the aforementioned concerns prevent full and fair climate reparations from becoming a reality?

To enable discourse that moves from abstractions to concrete ideas, and to promote a streamlined discussion, we presented authors with ten different hypothetical climate litigation scenarios. The merits of this approach consist not merely in exploring unsettled legal issues and speculating on how complex questions may be resolved, but also in stimulating critical thinking about potential reforms to current legal systems around shared problems. We would be remiss not to mention a collection edited by Francesco Sindico and Makane Moïse Mbengue which followed a similar approach, with contributions from scholars across the globe sharing scenario-based analyses of climate litigation from national legal perspectives.⁴⁰ However, our project differs from theirs in a number of respects. To mention a few, we encouraged authors to adopt an à la carte approach with respect to the hypothetical scenarios on which they wished to reflect, and to focus on concrete (and, to a large extent, visible) outcomes. We do not aim to present a comprehensive picture of what climate litigation can (potentially) look like in various domestic contexts. Rather, our aim is to collect insights on approaches to assessment and valuation of climate-related harms, and the potentials and pitfalls of litigation for climate reparations in different fora and against different categories of respondents. The ten hypothetical scenarios can be found in the next chapter. These cover the ECtHR, — S. 8 —IACtHR, the UN Committee on Economic, Social and Cultural Rights, ITLOS, the ICJ and domestic settings, as well as a range of different kinds of claims. This volume is particularly keen on advancing legal understandings of reparations for climate-related harms. In this respect, developments in international law have moved at a snail’s pace, notwithstanding L&D’s growing importance over the years as an agenda item in various successive COPs.⁴¹ Currently, L&D stands out as a hotbed for frustrations about the perceived injustice of multilaterally negotiated resolutions.⁴² As a result of this frustration, affected states and individuals may wish to turn to litigation to ensure accountability for climate-related harms.⁴³ However, it is not apparent whether the challenges facing such pursuits are surmountable. In the context of redressing breaches of international environmental law more generally, a litigation-based approach has been characterized as having several disadvantages when it comes to holding states responsible.⁴⁴ For climate-related L&D, challenges begin from a lack of clarity on whether international law norms exist which may have been breached, and if so, which states can be identified and moved against for having committed a breach. Doctrinal questions aside, concerns about the role of judicial bodies in the network of actors whose outputs affect the international negotiation process may be raised. Judicial dispute resolution is further complicated by the requirement for judges to engage with scientific evidence to establish causation (in law),⁴⁵ and valuation of climate-related L&D which has already occurred as well as that which is risked.

Given that the interests of concern are not limited to present lives, property, and territory, but also future generations’ interests, ecological services, and (Indigenous) peoples’ right to transmit their culture and cultural heritage, questions of whether and to what extent decisions on reparations do justice to injured individuals, peoples, and states need to be explored. For example, at the ICJ, beyond the usual forms of reparations listed in the Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA),⁴⁶ states have proposed technology transfers,⁴⁷ debt-for-climate swaps⁴⁸ or debt forgiveness⁴⁹ and non-monetary redress for climate-induced displacement.⁵⁰

The relevance of these ideas for the practice of international courts is further evidenced by the ECtHR’s remedial practice, which is yet to find an appropriate way to ensure full redress for environmental harms. The ECtHR typically limits remedies to declarations of violation, granting pecuniary damages in some rare environmental cases and non-pecuniary damages in exceptional (very grave) cases.⁵¹ The KlimaSeniorinnen case suggests that the Court may not utilize its power to order general measures in follow-up climate cases, and the judgment in that case has triggered a contentious debate before the Committee of Ministers as to whether the Swiss government has indeed complied with its obligation to remedy the violation identified by the Court.⁵²

More innovative approaches can be found in the IACtHR’s remedial practice, which contains several examples of ‘creative’ non-compensatory remedies,⁵³ including specific measures for reparation of collective harms,⁵⁴ — S. 10 —restitution of ancestral land to indigenous communities and establishment of community development funds.⁵⁵ Often, the IACtHR insists on compliance with these orders within a specified time-limit,⁵⁶ although the rate of compliance is alarmingly low.⁵⁷ Compliance concerns form yet another factor in assessing the content of possible reparations orders, among other limitations of litigating for climate reparations.

These issues are examined in the present volume, which we hope enables readers to critically assess the merits of litigation for seeking climate reparations. The book is organized into four parts, each representing a theme. The first is about assessment of risks and the valuation of climate related harms, with approaches from climate economics, psychology, and insurance law. The section begins with Francesca Leucci’s contribution, which elaborates on techniques developed in climate economics and argues for their application in the valuation of climate-related damage by courts (chapter 1). Alberto Monti’s contribution on the other hand approaches the topic of valuation from the perspective of the insurance and financial sectors, which are themselves exposed to climate-related risks but also called upon to play a crucial role in the management of these same risks (chapter 2). Addressing valuation from a different angle, Arden Rowell’s contribution highlights the problems that psychological factors pose to legal appreciation of risks and valuation of climaterelated damage. Her chapter speaks to the importance of quantitative valuation of climate harms, with an emphasis on the need for uncovering and understanding the ethical choices involved at each step of the process (chapter 3). Lastly, Jason Rudall’s analysis focuses on the various types of damage captured under the law of reparations and the practical challenges international courts and tribunals such as the ICJ face in ensuring that environmental damage is fully repaired (chapter 4).

The second part contains contributions which focus on rights-based climate litigation. The chapters in this section show how the different authors understand “success” in this context. Jannika Jahn’s contribution analyzes the Neubauer et al case decided by the German Federal Constitutional Court (chapter 6), April Williamson and others present a comparative analysis of the impacts of cases in different jurisdictions (chapter 7), and Charlotte E. Blattner’s — S. 11 —contribution analyzes the outcome and impacts of the KlimaSeniorinnen case decided by the European Court of Human Rights (chapter 8).

The third part presents critical perspectives on reparations for climate related-harms. This section begins with a contribution from Yusra Suedi, in which she assesses the challenges entailed in inter-state litigation for climate reparations and makes the case for why such efforts cannot be written off as futile (chapter 10). This is followed by Usha Natarajan’s analysis of important aspects of climate reparations that international law fails to capture, and assumptions in international environmental law which lead to the reproduction of the environmental problems it seeks to resolve (chapter 11). Natarajan argues that while international legal regimes and dispute settlement mechanisms operate in favor of the powerful, litigation is still valuable to the victims of climate injustice given that courts are theatres of immense symbolic power. Next, Linnéa Nordlander analyzes the prospects for compensatory relief in different types of climate litigation. Striking a different tone than the preceding chapters, Nordlander argues that litigation offers limited hope to global victims of climate-related loss and damage, whose needs would more reliably be addressed through an international loss and damage fund (chapter 12). Applying a relational approach to scrutinize climate litigation, Sara Seck’s contribution sheds light on how the prevalence of a certain frame in legal discourse, which ignores the social and ecological embeddedness of individuals, workers, corporations, the state and other legal actors, affects actors’ understanding of loss and damage in climate litigation, and monetization of climate harms (chapter 13).

The fourth and last part of this volume focuses on litigation against corporate actors. It starts with Valentin Jentsch’s analysis of legal questions arising in different types of climate cases brought against corporations (chapter 15). This is followed by Josephine van Zeben’s chapter, which considers the challenges of corporate climate litigation, and argues that the pathway towards accountability through litigation requires the development of a common legal framework that bridges the public-private divide (chapter 16). Lastly, Monika Hinteregger’s contribution contrasts the prospects of litigation brought by victims of climate change against those of shareholder-led litigation, which she argues we will see much more of in the future (chapter 17).

Each of these four parts is completed by a reflection chapter from, respectively, Viktoriya Gurash, Hazhar Jamali, Pranav Ganesan and Judge Larisa Alwin (chapters 5, 9, 14, and 18 respectively). These interim reflections capture the core issues of the debate concerning each of the four themes directly at the end of each part, rather than leaving them unaddressed until the end of the book. The final chapter of this volume then synthesizes the ideas discussed — S. 12 —by the various contributors. In this concluding chapter, we attempt to place the various ideas presented throughout the volume in a broader context, highlight the limitations of climate litigation and formulate questions for further research on this topic, which has now turned into a specialized field of legal research in its own right.

Helen Keller, Corina Heri and Pranav Ganesan

Model Scenarios

Scenario 1: Valuing loss of quality of life, and increased health risks

An association of elderly people residing in the State of X, a state party to the European Convention on Human Rights (ECHR) and all protocols to that Convention, have filed an application against X before the European Court of Human Rights (ECtHR). They allege that X is partly responsible for violations of their rights under Articles 2, 3 and 8 of the ECHR arising from adverse events linked to climate change. Beyond seeking to hold the respondent responsible for its inadequate mitigation measures, they seek a just satisfaction award as reparation for the damage that they have already suffered and will inevitably suffer in the future.

The applicants argue that climate change has already negatively impacted their lives, as heatwaves have produced specific health impairments and generally reduced their quality of life. They also argue that they face an increased risk of mortality that cannot be fully averted even if the respondent state takes the most ambitious mitigation measures possible. That is, while mitigation measures could contribute towards minimizing these harms, they would not avert them fully. Lastly, they seek compensation for the cost of proceedings given the complex nature of climate change litigation (which involves more groundwork and research than environmental pollution litigation, as well as interdisciplinary exchange with experts).

This scenario is based on the facts in the case of KlimaSeniorinnen and Others v Switzerland, which the ECtHR decided after we began this project.¹ While the ECtHR decided against the individual applicants regarding their victim status, it did not rule out the possibility that individuals could qualify as victims in future climate cases. Likewise, it held that state parties to the ECHR have a positive obligation to adopt measures and regulations capable of mitigating the present and future adverse effects of climate change, effectively implement those regulations and measures, and take supplementary adaptation measures to protect individuals from unavoidable risks. While the question of — S. 14 —substantive obligations was answered in this way, the precise content of these obligations is debated, as is the issue of the ECtHR’s exercise of its remedial powers in climate cases.

Scenario 2: Valuing loss of the ability to enjoy, practice and pass down culture

Members of the Sámi indigenous people living within Norway’s territory bring a case to the ECtHR, alleging that elements of their culture and traditional way of life stand to be affected by climate change. They seek to hold Norway responsible for violating Article 8 ECHR by granting new fossil fuel licenses. They submit that while the cultural rights of minority groups (eg under Article 27 of the International Covenant on Civil and Political Rights [ICCPR]) have not been explicitly recognized in the ECHR, a right to the protection of culture can arguably be derived from the Convention’s Article 8, as can a right to the protection of health. The applicants urge the ECtHR to make reparations for the adverse impacts on the practice of their culture.

They draw on the case of Billy et al v. Australia,² where members of an Indigenous community living in the Torres Strait complained before the UN Human Rights Committee that Australia had violated their ICCPR rights given climate-related “flooding and inundation [on the applicants’] villages and ancestral burial lands; destruction or withering of their traditional gardens through salinification caused by flooding or seawater ingress; decline of nutritionally and culturally important marine species and associated coral bleaching and ocean acidification.”³

This scenario invites engagement with the assessment of the effects of climate change on individuals’ ability to participate in cultural life and cultural heritage more broadly, as well as the ability for courts like the ECtHR to recognize this dimension of climate impacts and consequently adjust their adjudication of climate cases.

Scenario 3: Valuing loss of property

An association of farmers who own large tracts of agricultural land in Sicily, Italy, turn to domestic courts seeking redress for climate-related impacts on their land. They argue that the ongoing water crisis, which they link with — S. 15 —climate change, has affected their harvests. They also point to the high risk of desertification of their land in the near future. Connecting these risks with climate change, and thereby with the emission of greenhouse gases from within Italy’s jurisdiction, they allege a violation of their constitutional right to property, as well as Article 1, Protocol No. 1 ECHR. They argue that the appropriate remedy to be ordered by the Italian Constitutional Court should entail a combination of mitigation measures, adaptation measures, and compensation for lost profits and loss in value of the land.

This scenario illustrates the complexity arising from the relationship of climate mitigation and adaptation, as well as the valuation of damage to property caused by slow-onset events, and loss of profits. Notably, since the model scenarios were designed, a case resembling this scenario was brought before Swiss domestic courts by a group of farmers alleging the impacts of drought on their livelihoods.⁴

Scenario 4: Just transition litigation

Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)⁵ provides for the right to the continuous improvement of living conditions (alongside the right to an adequate standard of living for the individual and their family). The Committee on Economic, Social and Cultural Rights (CESCR) receives a communication against a state party to the ICESCR, and its Optional Protocol,⁶ from individuals alleging a violation of this right in relation to climate change. The authors of this Communication argue that the effects of climate change are diametrically opposite to the continuous improvement of their and others’ living conditions and urge the Committee to assess the climate-related damage to these conditions and to set up a loss and damage fund accessible to affected individuals (not just within the respondent State’s territory, but also those beyond).⁷

CESCR has not received any communications regarding environmental issues, much less climate change. Still, it has clearly indicated that respect for — S. 16 —human rights includes “refraining from the adoption of measures that could worsen climate change; protecting human rights, by effectively regulating private actors to ensure that their actions do not worsen climate change; and fulfilling human rights, by adopting policies that can channel modes of production and consumption towards a more environmentally sustainable pathway.”⁸ Since the Committee has flown under the radar as a potential venue for litigation of human rights violations caused by climate inaction, we found it important to include a standalone scenario such as this. The aim is for the participating authors to evaluate the potential of arguments based on social, economic and cultural rights.

Scenario 5: Collective remedies, and the rights of future generations

A collective of Indigenous peoples brings a case against Mexico, a member of the Organization of American States and a party to the American Convention on Human Rights, before the Inter-American Commission on Human Rights, alleging that by failing to adequately mitigate greenhouse gas emissions, the State is violating and will continue to violate their human right to a healthy environment, along with their right to life, food, water, cultural identity and property. They bring the case on their own behalf, and on behalf of future generations. They support their case by drawing on the best available scientific models, peer-reviewed IPCC findings and assessments by non-governmental organizations such as the Climate Action Tracker⁹ that all show that Mexico’s mitigation commitments are insufficient when evaluated against the Paris Agreement’s temperature target of 1.5°C. Drawing on the past case-law of the Inter-American Court of Human Rights (IACtHR), the plaintiffs seek both individualized economic reparations and collective, community-wide ones.

The IACtHR’s practice on reparations stands apart from that of other international courts in terms of innovation.¹⁰ In its environmental case law, this Court has specifically ordered the adoption of a robust environmental compensation plan, even detailing the quality that such a plan must reflect.¹¹

Considering the complexity entailed in determining what individual states must do in regard to climate mitigation and adaptation measures, this scenario invites consideration of the IACtHR as a potential inspiration for other international courts and especially the ECtHR¹² in regard to remedial measures.

Scenario 6: ITLOS

Small Island State v. Flag State is a hypothetical case before the International Tribunal for the Law of the Sea (ITLOS) concerning environmental damage to maritime environments and fishing caused by an oil tanker accident. The applicant State argues that restitutio in integrum may not be possible here, but that it should be granted full reparation with interest under an ecosystem goods and services approach.

Since it concerns the problem of environmental damage in an ocean pollution case rather than a climate case, this scenario invites authors to identify and propose solutions to the basic problems associated with environmental damage valuation in inter-state cases, where the harm is not strictly limited to the boundaries of the affected state but impacts the global commons as well. It also invites reflection on the contentious potential of ITLOS after its climate advisory opinion.¹³

Scenario 7: Inter-state litigation on transboundary harm and historical emissions

Peru brings a case against Brazil before the International Court of Justice (ICJ) alleging that the latter has breached its duty not to cause significant transboundary harm to the environment by failing to take the required protection measures in respect of the Amazon rainforest. In particular, it points to Brazil’s failure to prevent illegal deforestation and forest fires, and notes that — like all states — Brazil has known about the devastating effects of anthropogenic climate change since at least 1990.

Owing to its high vulnerability to the adverse effects of climate change, Peru supports its standing as a specially affected state. Aside from a declaration that Brazil violated international law, it requests the Court to order compensation for the harm to Peru’s environment that is causally related to Brazil’s wrongful conduct, including for climate-related loss and damage suffered by Peru.

While the natural resources within a state’s territory are subject to its permanent sovereignty, their mismanagement may produce transboundary effects on erga omnes interests such as biodiversity, populations of migratory species, and of course, the atmosphere.¹⁴ Therefore, can states that are vulnerable to the effects of climate change succeed before an international court in seeking reparations from other states for their (gross) mismanagement of crucial carbon sinks?

Scenario 8: Civil liability of corporations for climate adaptation costs and damage

In the case of Asmania et al v. Holcim,¹⁵ four residents of the Indonesian island of Pari have sued the Swiss-based building materials manufacturer Holcim for its contribution to climate change, and for current and future harms to which it has thereby subjected them. They argue that the corporation must be ordered to take mitigation measures and that it is civilly liable for the costs of adaptation and the value of climate-related loss and damage already suffered. Their claim for adaptation costs is similar to that in the German civil case of Lliuya v. RWE,¹⁶ where the plaintiff sought to hold the energy corporation RWE responsible for part of the costs of protecting his property from floods due to glacial melting linked with climate change. In both cases, the plaintiffs argued that the compensation owed should represent a percentage of the losses or costs incurred that is equivalent to the respective corporation’s percentage share in global industrial greenhouse gas emissions. While the plaintiffs lost in the latter case, which nevertheless established important principles in the sense of a “success without victory,”¹⁷ the former is still pending. These cases invite authors to explore both the strategic considerations underlying corporate responsibility litigation projects, their potential impact and the legal arguments involved in these cases.

Scenario 9: Shareholder-led litigation

Shareholder v. UBS is a hypothetical shareholder-led case against a major Swiss financial institution, brought before Swiss civil courts, arguing that the bank failed to disclose and account for the risks of financing CO2-intensive investments.

Shareholder-led litigation has remained underexplored in scholarship, especially as regards analysis of issues like litigating against certain categories of defendants (eg financial institutions, as opposed to energy or fossil fuel companies), and the problem of risk valuation that is specific to this context. This scenario invites authors to consider these types of arguments, and the prospects of success associated with this form of litigation.

Scenario 10: Class action lawsuit in the United States

Members of an Indigenous community in Norway file a class action suit against ExxonMobil and Chevron before a United States District Court on the basis of the US Alien Tort Statute (ATS) found in Title 28 of the US Code. They allege that the respondents have breached their duties arising out of international human rights law and the no harm principle by contributing to greenhouse gas emissions despite their knowledge about the links between fossil fuel extraction and climate change. The ATS reads: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”¹⁸

In Jesner v. Arab Bank,¹⁹ the Supreme Court of the United States seems to have denied that the ATS can serve as a basis to litigate foreign corporate liability, but it is unclear whether American corporations can be sued.²⁰ Justice Kennedy reasoned against the ATS extending to corporate liability because “current principles of international law [do not extend] liability — civil or criminal — for human-rights violations to corporations or other artificial entities.”²¹ Justice Sotomayor, in her dissent in the same case, opined that in ATS litigation, international law determines the scope of “substantive conduct” that is proscribed, rather than “forms of liability.”²² The scenario thus — S. 20 —invites engagement with this debate on corporate liability under the ATS and its alternatives, as well as the debate on extraterritorial responsibility and an assessment of possibilities for reparation.