Reparation for Climate Change: The Successes and Limits of Litigation

Part Three Critical Perspectives on Remedies and Implementation

Yusra Suedi*

Chapter 10: The Quest for Reparations in the International Climate Regime — Hopes and Hurdles

1.Introduction

The term “climate reparations” has become widespread. A legal interpretation indicates that this term covers any form of reparation — whether restitution, compensation and satisfaction in accordance with the International Law Commission’s Draft Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA)¹— for breaches of any obligations related to combatting climate change. However, the term has been politically appropriated to more narrowly denote the quest for compensation for the damage caused by greenhouse gases (GHG) over the last two centuries, as an expression of the pursuit of climate justice.² Climate justice strives for the equitable distribution of burdens and responsibilities related to climate change imposed on vulnerable people and communities (youth, Indigenous peoples and developing countries — especially Small-Island States). On the inter-state level, this has typically taken the form of one or more Global South state(s) making direct claims against one or more Global North state(s). For the purposes of this chapter, Global South nations are those with a lower level of economic and industrial development compared to the industrialized nations that make up the Global North.³ Of the — S. 208 —10 model scenarios,⁴ scenarios 6 and 7 present inter-state disputes opening the door to claims for climate reparations. However, as pointed out by Natarajan in this volume, the scenario of a Global South state seeking climate reparations from a Global North state for historical emissions is not considered.⁵

This chapter fills this gap by examining the quest for climate reparations, politically understood, within the international climate regime. It argues that while this pursuit may generate hope by increasing pressure on relevant states to offer reparations through cooperative and contentious avenues, it also presents noteworthy challenges. First, it discusses the historical political hurdles for loss and damage to be recognized, and frustrations in the operationalization of the Loss and Damage Fund (2). It then turns to challenges seeking climate reparations before the International Court of Justice (ICJ): contentious litigation before the Court presents several obstacles at the stage of jurisdiction and admissibility and an advisory opinion may not squarely address the question of reparations to the extent desirable (3). Finally, it considers that the available reparations under the ARSIWA provide unsatisfactory options for climate justice (4). Section (6) concludes.

2.Negotiating Reparations in the International Climate Regime

Loss and damage (with lowercase letters) has been defined by the Subsidiary Body for Implementation of the United Nations Framework Convention on Climate Change (UNFCCC) as “actual and/or potential manifestation of impacts associated with [anthropogenic] climate change in developing countries that negatively affect human and natural systems.”⁶ It arises when slow onset events and extreme weather events caused by climate change — such as “sea level rise, increasing temperatures, ocean acidification, glacial retreat and related impacts, salinization, land and forest degradation, loss of biodiversity and desertification”⁷— are too severe to be reduced by adapta- — S. 209 —tion.⁸ Acknowledging this, certain countries have consistently sought for greater acknowledgement for loss and damage in their pursuit of climate justice and climate reparations, ie compensation for this harm. Yet, this has been met with political hurdles and frustrations, exposed in this section. It is argued that such hurdles and frustrations instigated the political desire for climate reparation through litigation.

First, there were significant political hurdles for loss and damage to be recognized. This is identifiable from the dawn of the quest for reparations, which can be traced back to post-1990 efforts by small island states. In 1991, the then-newly formed Alliance of Small Island States (AOSIS) proposed the establishment of an international insurance pool based on the polluter pays principle, “to compensate the most vulnerable small island and low-lying coastal developing countries for loss and damage resulting from sea level rise.”.⁹ It also wanted the UNFCCC to mention that it is “without prejudice to (...) rules governing international liability for damage to people, property and the environment.”¹⁰ Such proposals were rejected, but the intention to “give full consideration (...) to actions related to funding [and] insurance” to meet the needs of developing countries was retained in Article 4.8 UNFCCC,¹¹ also echoed in Article 3.14 of the Kyoto Protocol (1997).¹² AOSIS still attempted to connect loss and damage with compensation at COP14 (in 2008), where it proposed the establishment of a “Multi-Window Mechanism to address loss and damage,” in which insurance and compensation were separated: the insurance component would help manage financial risk, while the compensation component would “address the progressive negative impacts of climate change (...) which result in loss and damage.”¹³ This was not reflected in the outcome — S. 210 —decision, nor in the breakthrough Warsaw International Mechanism for Loss and Damage (WIM) established in 2013.¹⁴ The uphill battle continued, with resistance persisting at COP26 in Glasgow with the failure to establish the G77 and China’s Glasgow Loss and Damage Facility. However, COP28 (2023) was finally marked by the establishment of a Loss and Damage Fund,¹⁵ following its “consideration, for the first time” in the preceding COP27 (2022) Sharm El-Sheikh Implementation Plan.¹⁶

At this point it was undeniable that “loss and damage” was a strand separate from mitigation and adaptation, thereby drawing more attention to concerns of vulnerable countries and communities in the multilateral climate regime. While this was largely considered as a win for at least some,¹⁷ shortcomings of the Fund sustained the frustrations resonating across the Global South that have increased the appeal of litigation for climate reparations. Three sources of frustration are developed below.

First, contributions to the Fund are voluntary, marked by the wording “[i]nvite financial contributions with developed country Parties continuing to take the lead to provide financial resources for commencing the operationalization of the Fund.”¹⁸ This gives high polluting states the option to compensate for the damage they have inevitably caused, downplaying the urgency and the necessity of such contributions. The optional nature of contributions might explain the status of the Fund: the pledges made,¹⁹ amounting to approximately 725 million US dollars, largely fall short of certain estimates of loss and damage, which — as both scholars²⁰ and the European Parliament have — S. 211 —estimated — cost developing countries “US$290 billion and US$580 billion annually, rising to between US$1 132 billion and US$1 741 billion by 2050.”²¹ The COP28 decision adopting the Loss and Damage Fund is unhelpful in omitting such information, as well as financial targets, calculations or specifics.²² Litigation, in contrast, would force liable states to pay their compensation if so ordered by a court, and would involve calculations on the basis of damage accrued.

Second, the decision to establish the Loss and Damage Fund lacks strong language indicating that developed countries, and specifically highest polluting states, are the ones to contribute. It instead provides that they are invited to take the lead, indicating that other states are welcome to contribute to the Fund as well. Paragraph 20(h)(i) of the decision confirms that the Fund may receive contributions “from a wide variety of sources.”²³ In this sense, it is no different to the failed 2010 Green Climate Fund,²⁴ which “[i]nvite[d] Parties,” broadly speaking, “to make financial contributions for [its] start-up.”²⁵ This framing as an open fund that anyone may or may not contribute to reflects a shift from the principal approach characterizing climate justice: to pursue the equitable distribution of burdens and responsibilities by imposing more obligations on those most responsible for climate damage, on the basis of their liability. Instead, the open voluntary call aligns with the Global North’s framing of loss and damage as an issue of cooperation as opposed to punishment. This dilutes its objective and renders it similar to the plethora of other existing funds with similar cooperative objectives, thereby providing no special incentive for states to contribute to this one as opposed to others.²⁶ The USA, for example, contributed USD 3 billion to the Green Climate Fund during COP28

compared to only USD 17.5 million to the Loss and Damage Fund.²⁷ Litigation for climate reparations, in contrast, places liability at the front and center of the process. It would clearly position an injured state against a defendant state, identifying where responsibility lies and ordering compensation accordingly. Litigation in pursuit of climate reparations also represents a contentious and adversarial process in international relations that steers away from cooperative discourse and better captures the emotional underpinnings of the climate justice movement.²⁸ Third, the prospects of developed countries taking a role of accountability through the framework of the Loss and Damage Fund are further downplayed by the role of the World Bank as “interim trustee”²⁹ responsible for “operationaliz[ing] the Fund,”³⁰ and the “host of the Fund’s secretariat.”³¹ While this was vehemently pushed by the USA and other developed nations,³² it was largely contested by developing states.³³ Indeed, the World Bank was “created and controlled by the Global North”³⁴, with the USA acting as its largest shareholder³⁵ and therefore holding the greatest voting power.³⁶ Antony Anghie has argued that it historically created “a far-reaching system that furthered the neo-liberal project, profoundly affecting the economic sovereignty of developing countries” who felt they had “no alternative but to subscribe to — S. 213 —these regimes in order to achieve the development for which they had always yearned and that neo-liberalism had promised to deliver”.³⁷

The combination of the historical political hurdles for loss and damage to be recognized, together with the frustrations in its operationalization, have enhanced the appeal of litigation for climate reparations. The dichotomy between the Global North and Global South reflected in the above analysis is a snapshot of wider tensions characterizing the international climate regime at large and originating in colonialism.³⁸ Indeed, in its 2022 report, the Intergovernmental Panel on Climate Change (IPCC) listed “historical and ongoing patterns of inequity such as colonialism” as an explanation for the substantial differences in vulnerability of ecosystems and people to climate change among and within regions.³⁹ On 25 October 2022, the then-newly-appointed UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance published a report explaining the connection between the climate crisis and “the historic and contemporary racial legacies of colonialism and slavery.”.⁴⁰ Such perspectives reinforce the notion of “loss and damage” and its desire to shed light on historical injustice, thereby building a greater case for climate reparations. This aligns with the broader political movement for colonial reparations, wherein former colonies are increasingly demanding compensation from Western nations, with notable progress seen in recent initiatives such as those in New Zealand.⁴¹ To this end, the CARICOM (Caribbean Community) famously adopted a Ten-Point Plan for Reparatory Justice in 2014.⁴² These rife and unresolved tensions somewhat create the backdrop to the polarized nature of climate negotiations, and explain the desire to turn to adversarial means of resolution through litigation. Indeed, as Wewerinke-Singh and Tigre have put it: “[t]he sharp North–South — S. 214 —divide in debates around L&D under the UNFCCC has left the concerns of vulnerable States largely unaddressed. This neglect has led to the exploration of other avenues of redress for climate harm outside of the UNFCCC by vulnerable States.”⁴³

In sum, the longstanding small island state fight for loss and damage in multilateral negotiation fora has been fraught with difficulties and disillusionments. This indicates that while facilitative channels framed by the UNFCCC loss and damage regime certainly create pressure for states in the Global North, they have yet to be proven as the ideal venue to achieve climate justice via reparations. These observations encouraged such states to consider litigation avenues discussed below.

3.The International Court of Justice: Arbiter of Climate Reparations?

While efforts to secure climate reparations through facilitation have been pursued, the challenges encountered have intensified the push to seek reparations through litigation. This section explores the prospects of this endeavor before the ICJ, whose jurisdiction ratione personae is limited to states, and whose jurisdiction ratione materiae allows for dispute resolution around multilateral environmental treaties. It explains why an advisory opinion may not squarely address the question of reparations to the extent desirable. It then discusses the jurisdictional hurdles before the ICJ in the context of contentious cases.

a.The Remedial Limitations of an Advisory Opinion

On 29 March 2023, the UN General Assembly, spearheaded by small-island state Vanuatu, requested an advisory opinion from the ICJ on the obligations of states concerning climate change. This move may prompt questions as to why a contentious avenue was not pursued. In this context, states could have directly approached the ICJ to seek a determination on reparations, as has been done in three notable cases: Chorz ó w,⁴⁴ Diallo⁴⁵ and DRC — S. 215 —v Uganda.⁴⁶ Furthermore, an advisory opinion is more reflective of a cooperative effort from the UN General Assembly, consisting of both Global North and South states, while a contentious case would better mark the adversarial pursuit for liability in the context of climate reparations.

The advisory route was likely chosen in the spirit of the overarching facilitative nature of environmental mechanisms. Indeed, while multilateral environmental agreements (MEAs) have established compliance-monitoring committees allowing a state to seize another out of concern for the latter’s compliance or implementation of environmental provisions, this has sparsely been used and was vehemently opposed for inclusion in negotiations to establish the Paris Agreement Implementation and Compliance Committee (PAICC).⁴⁷ It reflects the overarching preference in the international community for a facilitative rather than an adversarial approach in the environmental context, which likely watered down any desire for developing states to pursue bilateral litigation for climate damage. Despite the frustrations felt by small island states illustrated above (section 1), they were likely dissuaded to pursue this avenue. This is suggested by the former Prime Minister of Vanuatu’s statement before the UN General Assembly that “[a]n advisory opinion is a constructive and unconfrontational route to pursue such an initiative.”⁴⁸ Such political circumstances point to the power imbalance between major highemitting countries and smaller, climate-vulnerable nations, further discussed by Natarajan in this volume.⁴⁹

However, an advisory opinion also yields no guarantee of reparations being clearly spelled out. The question posed by the UN General Assembly in its request for an advisory opinion from the ICJ captures the spirit of climate justice, asking what are “the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm” towards small island developing States in particular, as well as “[p]eoples and individuals of the present and future generations affected by the adverse effects of climate change?”⁵⁰ Akin to many other requests for advisory opinions from the ICJ in the past, this request focuses on “legal consequences” — an open — S. 216 —invitation to engage with part two of the ARSIWA, which opens with Article 28 stating that “[t]he international responsibility of a State which is entailed by an internationally wrongful act in accordance with the provisions of part one involves legal consequences as set out in this part,” and continues with Article 31’s assertion that “[t]he responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.”⁵¹

The present chapter was finalized before the ICJ’s advisory opinion on climate change was issued. However, in the past, the Court has debated on whether it is appropriate for the law of state responsibility to be pronounced at all in an advisory opinion. In Chagos, where the Court ordered cessation,⁵² Bordin describes that the Court was criticized “for either over-reaching or under-reaching,”⁵³ with Judges such as Tomka and Gevorgian arguing that there was no need to decide on matters of State responsibility at all⁵⁴ and others such as Cançado Trindade and Salam arguing that the Court should have dealt with the issue of reparations owed to the displaced Chagossians more squarely.⁵⁵ Reasons for this relate to questions of judicial propriety, judicial function and non-circumvention of the consent principle in advisory proceedings.⁵⁶ There is therefore a risk that the ICJ will be vague when answering the question of legal consequences⁵⁷— even more so in this context because of the sensitive political backdrop explained above (section 1) against which the request is being made, which the ICJ would not wish to fuel.

b.The Contentious Avenue

The contentious avenue was deliberately avoided at least partly due to the political prioritization of facilitative measures. However, it was also likely avoided due to four jurisdictional hurdles explained below. This indicates that even if states were to opt for this avenue before the ICJ, new challenges would arise that are worthy of consideration.

First, it is difficult to identify a provision in a relevant international treaty that a state could argue has been breached. Voigt has observed that “[i]t is difficult to identify specific state obligations on the basis of the general obligations included in the Convention.”⁵⁸ There is more potential with respect to the Paris Agreement — however, in Paris at COP21, the US’s ratification hinged in part on the absence of any reference to “liability and compensation,” with other developed nations being averse to it as well. Article 8 of the Paris Agreement therefore acknowledges loss and damage and the Warsaw Mechanism as a means of “enhancing understanding, action and support (...) on a cooperative and facilitative basis,”⁵⁹ with an annexed Decision 1/CP.21 “agree[ing] that Article 8 of the Agreement does not involve or provide a basis for any liability or compensation.”⁶⁰

Indeed, liability and compensation has historically been a thorny issue, first finding expression in Principle 13 of the 1992 Rio Declaration, which promised that “[s]tates shall also co-operate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.” However, Fitzmaurice commented that:

During the negotiations, there was also a general divide between developing States (as represented by the Group of 77 and China) and developed States concerning the scope of liability for environmental damage. Initially, Australia, Canada, the US, and the EU objected to the inclusion of this principle as proposed by developing States. Developing States argued that after the Stockholm — S. 218 —Declaration there had been no action in the establishing of law in the field of liability for environmental damage.⁶¹

Still, decision 1/CP.21’s paragraph 51 does not legally exclude climate litigation in pursuit of compensation for loss and damage.⁶² Further, while Article 8 may not “provide a basis for” liability and compensation, other clauses of the Paris Agreement may do so. Beyond this, Voigt has argued that the Paris Agreement is justiciable, with normative elements that inform the interpretation of other international treaties and norms for the purposes of climate litigation — for example, the due diligence standard contained in customary international environmental law.⁶³

A second hurdle explaining why the contentious route was not pursued by small islands states relates to consent to jurisdiction. Article 14(1) UNFCCC asserts that parties “shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice” if a dispute arises, mirrored by Article 24 of the Paris Agreement.⁶⁴ Yet at the time of writing, only the Netherlands has accepted the Court’s jurisdiction over disputes related to either treaty.⁶⁵

Article 14(2)(a) UNFCCC, described by Bodansky as a “compromise, modelled on the dispute settlement provisions of other international environmental agreements,”⁶⁶ further offers the avenue of a dispute being resolved by the ICJ only if a state recognizes its jurisdiction “as compulsory ipso facto and without special agreement, in relation to any Party accepting the same obligation.”⁶⁷ The Paris Agreement refers to the same provision.⁶⁸ Therefore, — S. 219 —only two states having accepted the Court’s compulsory jurisdiction under Article 36(2) of the ICJ Statute would be able to litigate. This is limiting, as many of the biggest polluters such as China, the USA or Russia do not subscribe to such jurisdiction.⁶⁹

A third potential issue relates to standing, “an entitlement of an entity to be a party to judicial proceedings concerning contentious cases.”.⁷⁰ A state would normally have to establish a direct legal interest to sue, unless it can be proven that their interest in fact derives from a common interest to uphold an obligation erga omnes partes related to climate protection. Indeed, it has now been firmly established by the ICJ that “any State party to [a convention whose provisions give rise to obligations erga omnes partes] may invoke the responsibility of another State party, including through the institution of proceedings before the Court, with a view to determining the alleged failure to comply with its obligations erga omnes partes under the Convention and to bringing that failure to an end.”⁷¹ However, this principle has so far been applied only to obligations arising from specific treaties (erga omnes partes), rather than broader obligations owed to the international community as a whole (erga omnes), which are rooted in customary international law.⁷² While certain provisions in the UNFCCC and Paris Agreement might give rise to obligations erga omnes partes, the Court has not had the opportunity to confirm this. Indeed, the established practice has only been tested with respect to genocide⁷³ and torture,⁷⁴ two of a small catalogue of examples offered by the ICJ in Barcelona Traction, which did not include any environmental rights as a product of its time.⁷⁵ It is therefore unclear at this stage whether an obligation erga omnes partes could derive from a treaty relating to climate change for the purposes of inter-state ICJ litigation — although this is certainly possible, considering the Whaling case where the Court tacitly accepted Australia’s

claim that it sought to uphold its collective interest⁷⁶ to uphold erga omnes partes obligations emanating from the International Convention for the Regulation of Whaling (ICRW).⁷⁷ If a case were brought and not dismissed on other jurisdictional grounds, as was the case in the Marshall Islands cases,⁷⁸ it could be an opportunity to develop the Court’s jurisprudence on this question. A fourth potential jurisdictional issue at this stage is the Monetary Gold principle, stemming from an ICJ case of the same name⁷⁹ and holding that the rights, responsibilities or legal position of absent third states cannot be ruled on in a bilateral dispute if they constitute the “very subject matter” of the dispute.⁸⁰ Certain scholars have argued that this would render an inter-state climate case inadmissible due to the difficulty of identifying “how the specific contribution of one State towards climate change can be untangled from that of other States.”⁸¹ As McGarry and Zargarinejad observe, Monetary Gold has been invoked in a number of cases but rejected as the non-parties’ interests did not comprise “the very subject matter of the dispute,” with the exception of East Timor.⁸² Similarly to the issue of standing above, it is unclear what position the Court would take in unchartered waters. In sum, the four jurisdictional challenges explained in this section do not bar the possibility of a contentious case being brought before the ICJ in pursuit of climate reparations. Rather than excluding the option entirely, they — S. 221 —create opportunities for creative lawyering and risk, as the Court’s case law with respect to many of these issues has not been firmly established. Risking litigation without the guarantee of surpassing these hurdles and achieving victory is certainly characteristic of public interest litigation.⁸³ However, these obstacles, coupled with a possible reluctance to create more political strain by suing, might explain why small island states resorted to requesting an advisory opinion instead.

4.Reparation: Which Options Are Most Suitable?

Whether a contentious case is filed or an advisory opinion requested, the framework established by the ARSIWA determines the possibilities for climate reparations. This section argues that the reparation possibilities under ARSIWA may not be suitable for the overall objectives of climate justice. As mentioned in the introduction, the term “climate reparations” has been politically appropriated to more narrowly denote the quest for compensation for the damage caused by GHG over the last two centuries, as an expression of the pursuit of climate justice. However, this does not limit the request made by a litigating state to compensation. ARSIWA’s Article 34 provides that reparation takes the form of “restitution, compensation and satisfaction,”⁸⁴ and the ILC has said that “[t]he question of cessation often arises in close connection with that of reparation (...).”⁸⁵ For these reasons, this section considers all legal consequences ensuing from the establishment of an internationally wrongful act denoting climate damage. It first discusses compensation given the primacy of this in the pursuit of climate reparations, before turning to other forms of reparation, as well as cessation.

a.Compensation

Compensation is considered “insofar as such damage is not made good by restitution,”⁸⁶ as is the case for much of climate damage. Despite the suggestion that it is subsidiary to restitution (discussed below), compensation is “perhaps the most commonly sought in international practice”⁸⁷ given that, as the ILC — S. 222 —explains, restitution is “despite its primacy (...) frequently unavailable or inadequate.”⁸⁸ Compensation has indeed become colloquially employed as a synonym to the legally broader term “reparation,” and the idea of “climate reparations” often indicates compensation in non-academic writings.⁸⁹

Compensation has, generally speaking, been challenging for the Court to order. In the sparse occasions where it has done so, it has offered little to no explanation as to how it arrived at the figures presented — despite both Costa Rica and Nicaragua making lengthy arguments as to which methods of calculation should be employed for environmental damage in Certain Activities.⁹⁰ However, climate reparations create further challenges: what date does one start calculating damage from — the industrial revolution? Should current governments be responsible for decisions of previous governments? How can this be calculated in light of the shared responsibility of states? Scholars have argued de lege ferenda that “[e]ach international person sharing responsibility is under an obligation to make full reparation,” but this has yet to be established by the Court.⁹¹

Beyond these challenges, the general requirement in the ARSIWA to provide “full” reparations generates further complexity in any hypothetical calculation. Article 31(1) ARSIWA provides that “[t]he responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.”⁹² This provision finds its origins in a famous Chorz ó w case, where the Court clarified that, “[t]he essential principle contained in the actual notion of an illegal act (...) is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.”⁹³ As Mayer affirms, “it implies that the scope of reparation should be determined exclusively on the basis of the injury.”⁹⁴ The injury, ARSIWA specifies, “includes any damage, whether material or moral, caused by the internationally wrongful act of a State.”⁹⁵ This raises challenging questions with respect to how to calculate damages for climate reparations. As mentioned above, loss — S. 223 —and damage has been estimated in the billions annually. Certain scholars have also argued against crippling compensation.⁹⁶

This therefore raises questions as to whether compensation could ever be offered in the “full” manner required. While Mayer argues that this requirement is seldom met,⁹⁷ it significantly complexifies the pursuit of compensation for climate damage before the ICJ. Mayer proposes a “partial” or “symbolic” compensation instead — although this does not entirely resolve complexities mentioned above.⁹⁸ Jason Rudall fleshes out the numerous hurdles and considerations in his contribution to this collection.⁹⁹

b.Restitution and Satisfaction

Another form of reparation is restitution, which serves “to re-establish the situation which existed before the wrongful act was committed,” according to the ILC.¹⁰⁰ The obvious issue is that it is physically impossible to restore much of the environmental damage resulting from acts or omissions of states contributing to climate change. The very movement of loss and damage is premised on the acknowledgement that adaptation measures cannot always be applicable. Effects such as storms, drought, rising oceans and loss of species¹⁰¹ cannot be reestablished. Yet, this is in fact the form of reparation that suing individuals or states would want the most.

The third form of reparation to consider is satisfaction, where an injury “cannot be made good by restitution or compensation.”¹⁰² If the challenges above were acknowledged by the ICJ, this would be the remaining possibility in the realm of reparations. Developed states largely responsible for the climate crisis would therefore need to “acknowledge the breach, express regret, formally apologise or another appropriate modality,” according to Article 37(2) ARSIWA.¹⁰³ Apologies have increasingly been issued by developed states for historic colonial wrongs¹⁰⁴ and, given the abovementioned connection — S. 224 —between colonialism and climate damage, would also be suitable as a form of redress. This alone, however, would undermine the climate justice movement’s pursuit of meaningful political change and equity.

c.Cessation

Finally, it is worth looking at the request for cessation as, while this is not one of the three forms of reparation above, it is still often requested before the ICJ alongside at least one of them. Cessation is the principal legal obligation flowing from an establishment of an internationally wrongful act, coupled with non-repetition.¹⁰⁵ It is the obligation for a state responsible for an internationally wrongful act to “cease that act, if it is continuing.”¹⁰⁶ It therefore covers continuing wrongful acts as well as repeated ones.¹⁰⁷ The ILC defines a continually wrongful act as one which “occupies the entire period during which the act continues and remains not in conformity with the international obligation, provided that the State is bound by the international obligation during that period.”¹⁰⁸

The request for cessation also gives rise to certain challenges. In pursuing climate litigation, litigating states would likely want a noteworthy reduction of GHG emissions by polluting states. However, it is unlikely that this can be accomplished immediately or even in the short term.¹⁰⁹ States are therefore bound to fail to meet this request at the outset. On the other hand, as Sparks argues:

An obligation of cessation attaching to emissions of [GHG] over and above a certain future share of global emissions, though more achievable and reasonable, runs the risk either of being unduly deferential to a State’s own assessment of its position and prospects (and thus of recreating the weaknesses of the Paris Agreement), or of being subjected to the critique that in setting definite standards, the ICJ is straying into judicial legislation and overriding the treatymaking competence of States.¹¹⁰

Another issue raised with invoking cessation is its potentially hollow effect if we consider the shared nature of state responsibility in the climate context.

If other contributors to the harm are not ordered to do the same because the case was only brought via judicial channels against one state, will this have any effect? The so-called “drop in the ocean” argument invoked by states such as Australia in Daniel Billy v. Australia has been rejected by the UN Human Rights Committee.¹¹¹ Even if the Court followed suit, the shared responsibility will practically imply that its judgment will have the symbolic and political effect of signaling to other states not parties to the dispute that they are in breach and must cease their wrongful acts, without compelling them to do so through a binding decision. This, too, would be in the spirit of public interest litigation and its strategic motives.¹¹² These initial problems with cessation, however, are not to be overlooked insofar as the main objective of litigation is to require states to cease their wrongful acts harmful to the climate.

5.Hope Despite Hurdles?

Despite the hurdles exposed in the above analysis, hope can still be found in two key perspectives.

The first perspective highlights the importance of collective action. While this chapter elucidated the omnipresent opposition of cooperative and contentious measures, the most effective approach towards ensuring full compliance with climate obligations is collective action: to combine all available methods and pursue every viable option. The analysis above therefore does not suggest that these measures should be avoided; rather, it shows that the best possible chance is through a concerted effort of both cooperative and contentious strategies, as their combination creates stronger collective pressure.

Cooperative measures, particularly in the form of multilateral negotiations, may not immediately result in climate reparations, but they send a powerful signal of the global desire for such accountability and continue to push high-emitting states toward that outcome. These negotiations exert pressure in several key ways: first, they lead to the creation of multilateral treaties and agreements, such as the UNFCCC and the Paris Agreement, which lay the legal groundwork for future litigation by establishing potentially justiciable provisions conveying climate-related obligations.¹¹³ Second, negotiations can — S. 226 —expose failures in commitments or actions, which can prompt states to seek international, regional or domestic litigation as a means of enforcing accountability. Third, they encourage states to work through their differences diplomatically, motivated by the potential of legal action or the threat of being held accountable in court. Ultimately, these cooperative efforts contribute to a broader framework that pushes for legal accountability on the climate crisis.

Adversarial means are also increasingly solicited to pressure certain states further into compliance with their climate obligations as the urgency of the climate crisis becomes more acute. Such litigation would fall squarely in line with public interest litigation, where courts are seized as “forums of protest” against all odds in the strategic pursuit of the wider aim of political change through, for instance, media attention, shaming or political pressure.¹¹⁴ Public interest litigation offers a source of hope for two key reasons. First, its emphasis on process rather than immediate outcomes ensures its continued relevance as the climate crisis deepens. As Jeßberger and Steinl aptly note:

[A]chieving the objectives behind the specific case or process significantly outweighs, in the eyes of the actors pursuing litigation, the immediate outcome of that case or process. In other words, the strategic goals steer the litigation rather than the conventional other way around. A potential control question for litigants in this sense could be: Even in case of a legal loss, would it still be worth the litigation effort?¹¹⁵

This type of litigation is not merely about securing legal victories; rather, it is a strategic tool aimed at pressuring states to reconsider and ultimately change their behaviors.¹¹⁶ This means that regardless of legal outcomes, it will remain a persistent force that can gradually influence state actions, including in the context of negotiation.¹¹⁷ Its potential to drive systemic change makes it an enduring and vital mechanism in the fight against climate inaction.

Second, courts such as the ICJ accommodate the practice of public interest litigation in their procedures. The most obvious example is that actio popularis is now an accepted and prevalent practice before it, with states — S. 227 —parties to certain conventions invoking the responsibility of others¹¹⁸— a practice not permitted before 2012.¹¹⁹ Given the political pressures surrounding the climate crisis and its urgency, it is possible that the ICJ could adopt a more accommodating approach to its rules and practices on jurisdiction and admissibility should such cases arrive on its docket.¹²⁰

Hope for climate reparations can also be found in a perspective beyond the state. While this chapter has focused on inter-state mechanisms leading to climate reparations, the observations made also indicate that the pursuit of climate reparations should not be limited to the state level. This collection features several scenarios presenting valuable alternative paths, via regional human rights courts (scenarios 1, 2, 3 and 5), UN treaty bodies (scenario 4) or domestic litigation (scenarios 8, 9 and 10). While these pathways are not without their complexities, they share a key advantage: they grant a more significant role to non-state actors. Unlike inter-state litigation, which is limited to states as parties, regional human rights courts and UN treaty bodies allow individuals, NGOs, and other non-state actors to bring claims.¹²¹ This expands access to justice for vulnerable groups and communities most affected by climate change. Such forums also allow such actors to bypass potential reluctance from states to litigate against one another.

Domestic litigation holds other important advantages. The first is that domestic courts can arguably hold states more effectively accountable for their climate obligations due to the presence of internal enforcement mechanisms that oversee the implementation of judicial decisions, ensuring accountability and reducing the risk of non-compliance. This direct link between domestic litigation and enforcement makes these proceedings a powerful tool for driving tangible climate action. The second is that domestic courts provide a unique avenue for holding corporate actors accountable for their contributions to climate change, an option often unavailable in international courts, which target states. By targeting corporations directly, domestic litigation helps bridge the accountability gap left by international legal frameworks, emphasizing the shared responsibility of non-state actors in combating the climate crisis.

Domestic legal proceedings can complement international cooperative and contentious efforts, creating a synergistic approach to addressing climate — S. 228 —change. For instance, the ICJ’s advisory opinion on climate change obligations aims to clarify states’ obligations under international law.¹²² This clarification can serve as a critical reference point for domestic courts, providing a legal threshold for evaluating cases of domestic climate litigation.¹²³ By aligning domestic decisions with international legal principles, domestic courts can strengthen the enforcement of climate obligations at the national level while reinforcing global norms. This interplay between domestic and international mechanisms not only enhances accountability but also ensures a more cohesive and comprehensive response to the climate crisis. All avenues — domestic, regional, international, cooperative and contentious — should therefore be pursued in concert. All judicial proceedings come with their own challenges, mapped out across this volume, but it is the culmination of efforts that can lead to progress in climate justice.

6.Conclusion

This chapter presented a complex picture of the international climate regime and its prospects for offering climate reparations. The long-standing hurdles for loss and damage to be recognized, frustrations in the operationalization of the Loss and Damage Fund, jurisdictional and remedial limitations through ICJ litigation and limitations ensuing from the ARSIWA framework on legal consequences all indicate that the inter-state pursuit for climate reparations is a difficult endeavour.

However, these obstacles do not render the pursuit futile. Instead, they underscore the need for innovative and multifaceted strategies that leverage the strengths of different legal mechanisms. The growing prominence of public interest litigation, domestic and regional courts, and cooperative efforts within the international community demonstrates that progress, while incremental, is possible. These avenues not only hold states accountable but also foster an evolving legal and political landscape that is increasingly responsive to the demands for climate justice. By combining these approaches, the international climate regime can continue to build momentum toward more robust mechanisms for accountability and ultimately, climate reparations.