Reparation for Climate Change: The Successes and Limits of Litigation

Linnéa Nordlander

Chapter 12: Conceptualizing Loss and Damage for a New Frontier of Rights-Based Climate Change Litigation

1.Introduction

The international climate change regime lacks legally enforceable rights and obligations relating to the remedy of climate change loss and damage, a gap that has long been highlighted by climate-vulnerable developing countries.¹ Progress has been made on the matter over the last decade, with the recognition of the importance of loss and damage in the Paris Agreement and the subsequent establishment of initiatives like the Santiago Network for Loss and Damage, the Glasgow Dialogue on Loss and Damage, and most notably, a dedicated Fund for responding to loss and damage. Although the decision operationalizing the Fund “allows all developing countries to directly access resources from the Fund,”² this does not create a right for states to access finance in adequate volumes. Nor does it clarify which types of harms may be eligible for support. Moreover, contributions to the Fund are encouraged from both developed and developing countries,³ but not mandated. This leaves

climate-vulnerable developing countries, like small island developing states and least developed states, which have contributed minimally to greenhouse gas (GHG) emissions,⁴ vulnerable to bearing the burden of addressing climate impacts largely on their own. As negotiations have been ongoing, climate change litigation has been on the rise. Claims vary in nature, but often aim to hold states or corporations accountable for their (in)action on mitigation and/or adaptation, especially on the basis of human rights law.⁵ Litigation for loss and damage is comparatively underutilized. Given the remedial gap in the international climate change regime and the slow progress to fill it, scholars have suggested that litigation may offer an alternative route for those seeking redress for climate harm.⁶ This chapter seeks to contribute to that scholarship by exploring how five different types of human rights litigation can or cannot accommodate various elements of justice — ex post remedies, distributive justice, and the identification of duty bearers and rights holders — that underlie the loss and damage debate. To do so, the chapter first outlines how loss and damage is addressed in the international climate change regime, in order to highlight how litigation may serve a supplementary role, in section 2. Section 3 then examines three unresolved issues regarding how loss and damage is understood in the international climate change regime: (1) whether it only concerns ex post injury, (2) the role of — S. 253 —distributive justice, and (3) the identification of victims and duty-bearers. In section 4, the chapter analyzes fives type of litigation and their potential to provide remedies: (1) national vertical (individual v territorial state), (2) national oblique (individual v territorial corporation), (3) transnational diagonal (individual v non-territorial state), (4) transnational horizontal (interstate), and (5) transnational oblique (individual v non-territorial corporation).

In terms of delimitations, this chapter focuses on human rights litigation, specifically targeting European states and corporations based in Europe. This focus has been selected due to the high per capita emissions of these states⁷ and the robust human rights framework provided by the European Convention on Human Rights (ECHR) and its Court, which has contributed to the prevalence of rights-based climate change litigation in the region.⁸ While litigation against other major emitting developed states, such as the United States and Australia, is beyond the scope of this chapter, its findings are nevertheless relevant for prospective rights-based litigation against such states in other fora, such as before international treaty bodies and courts (depending on treaty membership and acceptance of judicial competence). While the chapter engages with litigation against developing states, this is not the primary focus, given that developed states are typically seen as the principal duty-bearers for loss and damage, as discussed in section 3(c). Additionally, litigation against developing states would not generally deliver on the calls for distributive climate justice at the international level discussed in section 3(b). Developing states and their nationals are, however, discussed in the chapter as potential litigants or beneficiaries.

2.Loss and Damage in the Climate Change Regime

Since the inception of the international climate change regime, small island developing states particularly vulnerable to the adverse effects of climate change have called for assistance in addressing these impacts, initially proposing an insurance pool financed by mandatory contributions from developed states as part of the United Nations Framework Convention on Climate Change (UNFCCC).⁹ The proposal was not included in the Convention, but calls for — S. 254 —compensation and assistance for loss and damage persisted in the negotiations. The 2013 establishment of the Warsaw International Mechanism (WIM) marked the first institutional effort to address loss and damage. The WIM plays a facilitative role on knowledge-sharing and coordination, without any financial role. This, and the fact that the WIM was established under the Cancun Adaptation Framework, was considered problematic by some developing states.¹⁰ Thus, in the lead-up to the adoption of the Paris Agreement, these states advocated for the inclusion of loss and damage as an independent item from adaptation in the Agreement, requiring new finance additional to adaptation finance. Despite contentious negotiations,¹¹ this crystallized in Article 8 of the Paris Agreement. The trade-off was the inclusion of paragraph 51 of the Conference of the Parties (COP) decision adopting the Paris Agreement, which explicitly excludes the use of Article 8 as a basis for liability and compensation.¹²

Despite the liability and compensation caveat, calls for financial assistance persisted post-Paris. After several years of financial plans being watered down into “networks”¹³ and “dialogues,”¹⁴ state parties finally agreed to establish a Fund for loss and damage in 2022.¹⁵ This historic step finally (implicitly) recognized the distributive justice demands that had long underpinned the loss and damage negotiations.¹⁶ However, the Fund’s operational framework still does not guarantee adequate financing or clarify eligibility criteria for support, leaving climate-vulnerable states without guaranteed assistance.¹⁷ This situation raises the question of whether litigation could offer a remedy — S. 255 —where the international climate change regime falls short. Yet, the potential for litigation to fill this gap depends on resolving key uncertainties about the meaning of loss and damage, which the following section will explore.

3.Understanding Loss and Damage

Loss and damage remains undefined in the international climate change regime. Boyd and others have identified a typology that frames loss and damage through four key perspectives: the mitigation and adaptation perspective, the risk management perspective, the limits to adaptation perspective, and the existential perspective.¹⁸ Each perspective determines the type of response considered necessary to address loss and damage. The first perspective considers mitigation and adaptation sufficient, since all impacts of climate change are viewed as potential causes of loss and damage. The risk management perspective emphasizes disaster risk management and insurance, suggesting that loss and damage can be managed proactively by reducing risk. The limits to adaptation perspective highlights the impacts that already exceed the capacity for adaptation, requiring ex post responses to address harm that has already occurred. Similarly, the existential perspective focuses on actualized impacts but specifically underscores the need for remedies, with an emphasis on compensation.¹⁹ Existing research reveals varying scholarly interpretations of these categories, with most aligning with the limits to adaptation or existential perspectives.²⁰ Common to the limits to adaptation and existential perspectives is a recognition that there are adverse impacts of climate change that cannot be avoided through additional adaptation, whereas the former two view loss and damage as something that can be averted and minimized through enhanced adaptation (and mitigation).

a.Actual Impacts

A key difference in these perspectives revolves around a fundamental question: does loss and damage concern the actual or potential manifestation of climate change impacts? This question has been a significant reason why reaching agreement on appropriate measures to address loss and damage within the climate change regime has been slow and challenging. Approaches that — S. 256 —recognize the inevitability of harm often call for the adoption of responsive remedial measures, like compensation. While the funding arrangements for loss and damage do not explicitly grant rights to receive or impose obligations to provide compensation, their creation reflects an acknowledgment of the need for ex post measures. As such, scholarship and policy now suggest that loss and damage primarily focuses on the actual manifestation of impacts.

However, in lieu of the operationalized funding arrangements with associated rights to assistance, individuals and states continue to lack effective remedies for the climate change harms they experience. Litigation may provide such remedies when it addresses harm that has already occurred. Claims for future or potential harm, however, may blur the lines between adaptation and loss and damage. As mentioned in section 2, this distinction has been critical for many developing states in the international climate change negotiations on loss and damage, as they seek ex post responses, rather than efforts focused solely on increasing adaptation measures, which are already established under the regime. The conflation of future harm with loss and damage claims may challenge the emerging understanding of loss and damage as involving responsive elements that address actual harm, in light of the establishment of funding arrangements to this end. At the same time, climate change claims may invoke both preventative and responsive elements and not always divide explicitly or clearly between mitigation, adaptation, and loss and damage. In such instances, only the responsive elements, seeking to remedy incurred harm, can truly fill the gaps left by the loss and damage funding arrangements.

b.Distributive Climate Justice

The debate around providing remedies for loss and damage ties into the question of the basis on which they ought to be provided. Loss and damage has long been closely linked to the notion of distributive climate justice, as reflected by the original proposal by the Alliance of Small Island Developing States, which called for mandatory financial contributions from developed states based on their GHG emissions and gross national product.²¹ This notion of distributive climate justice has since underpinned loss and damage negotiations, with some developed states making the issue of liability a “red line” in the Paris negotiations,²² as discussed in section 2.

Resistance to recognizing current and historic responsibility for loss and damage also permeates the operationalization of the Loss and Damage Fund, with emphasis placed on “the need for support from a wide variety of sources, including innovative sources,”²³ rather than exclusively from those historically responsible for emissions. The Transitional Committee’s report noted that while public sources will play a major role, additional contributions will be necessary.²⁴ As such, it is still not settled whether states will pay into the Fund, which states, or on what basis.

A key question is whether distributive justice will shape the Fund’s operation. The question of the responsibility of major emitters for their historical contributions to GHG emissions permeates the loss and damage debate, with some calling for remedies for loss and damage as a form of reparation for the injustice of climate change impacts experienced by developing countries, in light of their negligible contribution to emissions.²⁵ If contributions to the Fund and payouts from it are not tied to historic and current responsibility, distributive demands will not be satisfied. On the other hand, if loss and damage is primarily about receiving assistance in addressing the adverse impacts of climate change, the source of funds may be less important. Resolving this issue is critical for the Fund’s ability to meet the demands of climatevulnerable developing states.

In the absence of operationalization of the Fund on the basis of the principle of distributive climate justice, litigation may play a supplementary role. Delivering distributive climate justice through litigation also presents challenges, particularly in terms of legal basis and access to courts in foreign jurisdictions. If climate justice is central to the notion of loss and damage, then allowing litigants from developing states to bring claims in developed states’ courts becomes crucial. As is discussed in section 4 below, transnational claims have faced considerable hurdles to date.

c.Duty Bearers and Victims in the Context of Loss and Damage

A final outstanding question in the context of loss and damage is identifying who the duty bearers and victims are. Given that the international climate change regime operates within the framework of state-centric rights and duties, it has been assumed that states are both the duty bearers and victims of loss and damage. However, Article 8 of the Paris Agreement does not specify the relevant entities, leaving scope for parties to include private actors, like corporations, individuals and communities, as duty bearers and/or victims.

Decisions adopted after Paris indicate that developing countries particularly vulnerable to climate change are to be the primary beneficiaries of any loss and damage assistance.²⁶ The operationalization of the Fund allows all developing countries to directly access resources, with small grants for affected communities.²⁷ However, the rights to access the Fund are granted to states, meaning that affected communities will rely on their states to access financial assistance. Depending on how this is implemented in practice, this arrangement may not ensure adequate support for individuals or communities, especially if the Fund lacks sufficient contributions to meet the needs of developing states themselves.

The decisions concerning the funding arrangements are less direct with respect to the duty-bearers for loss and damage finance, meaning it is unclear who must contribute to the Fund. Contributions are voluntary, with developed countries encouraged — but not mandated — to provide financial support.²⁸ Developing countries²⁹ and private sources³⁰ are also invited to contribute, but there are no binding obligations to this end. This creates uncertainty about the extent to which states, private actors, or other innovative sources will take responsibility for funding concerted loss and damage remedies.

Litigation may offer an alternative avenue to hold actors accountable when sufficient financial support is not available through international mechanisms. States may turn to inter-state litigation if they cannot access enough finance from the Fund, although this might not be conducive to advancing progress in the international loss and damage negotiations, as discussed further in section 4 below.³¹ For individuals and communities, litigation could provide — S. 259 —a means to claim remedies for climate change harms directly, holding states or private actors accountable for their contributions to climate change.

A central question that arises here is whether litigation for loss and damage must target developed states specifically, based on their historical and current contributions to GHG emissions, or if it can target any major emitter, public or private, in order to cater to the demands of developing states advocating for the provision of loss and damage remedies. In conclusion, identifying clear duty bearers and victims in the loss and damage context is critical for both the operationalization of international funding arrangements and the potential role of litigation in delivering suitable remedies.

4.What Loss and Damage Gaps can Litigation Fill?

This section will explore whether and how rights-based litigation can provide responses to actual impacts and cater to demands for distributive climate justice. It considers which types of duty-bearers, developed states and corporations, can be targeted in litigation by individuals and developing states, through both national (when applicants and respondents are within the same jurisdiction) and transnational (when applicants and respondents are in different jurisdictions) litigation.

While loss and damage is often framed around developing states or individuals and communities in those states receiving assistance for addressing climate change impacts, scholars have also highlighted the importance of addressing the needs of climate vulnerable groups within developed states — the “south within the north.”³² National litigation against both states and corporations may provide an avenue for these populations (discussed in sections 4(a) and 4(b) respectively). However, at the heart of the loss and damage debate is the imbalance between the contributions of developed states to climate change and the vulnerability of developing states to its effects. The section therefore turns to the potential of transnational litigation — whether individual v state (section 4(c)), inter-state (section 4(d)), or individual v corporation (section 4(e)) — to offer remedies for loss and damage.

a.Vertical Litigation (National): Individual v Territorial State

National vertical climate change litigation, where individuals bring cases against their home state (as in scenarios 1, 2, 3, and 5) has already yielded considerable successes in landmark cases like Urgenda v Netherlands,³³ Neubauer v Germany,³⁴ and Verein KlimaSeniorinnen v Switzerland.³⁵ These judgments demonstrate that inadequate state action on climate change can constitute human rights violations and that courts are increasingly willing to hold states accountable to that end. However, these cases focus on systemic mitigation, meaning that they target a state’s overall mitigation ambition,³⁶ while claims for compensation for climate-related damages, such as the satisfaction sought for health harms incurred in scenario 1 and the compensation claim envisioned in scenario 5 for climate change-driven human rights violations, are less common. Therefore, it is unclear whether mitigation-based successes can indicate potentially successful outcomes for compensation claims.

In principle, the logic of systemic mitigation cases should be transferrable to loss and damage cases: manifested harms to health should be considered human rights interferences, given that the risk of those harms have been classified as such.³⁷ This should lead to the establishment of violations on behalf of the state in question, on the basis of partial responsibility for partial causation. In other words, in Urgenda and KlimaSeniorinnen, the courts found that the Netherlands and Switzerland respectively were responsible for their “share” of mitigating climate change, although the European Court of Human Rights (ECtHR) refrained from employing the notion of “fair share” in Klima-Seniorinnen³⁸ and thus did not engage with specific target setting, in contrast — S. 261 —to the Dutch Supreme Court in Urgenda. Applying this logic to loss and damage claims may enable courts to find states responsible for their contributions to climate change, contributing to the manifestation of the harm. This could result in the state in question being liable to remedy their “share” of the harm caused by their GHG emissions. This raises complex questions about calculating historical contributions (as compared to future emissions). However, courts may hesitate to link specific emissions to concrete harm, since the causation is not linear. Indeed, the effects of climate impacts are influenced by various factors like adaptation failures, social determinants of vulnerability, and economic and demographic changes.³⁹ It would thus likely be challenging to establish what portion of the harm is attributable to the state’s historic GHG emissions. Even if responsibility is assigned, compensation may be minimal due to the small share of responsibility that could be attributed to each state.

In the event that courts do establish human rights violations for loss and damage, the question arises as to the type of remedy awarded, which varies significantly between judicial bodies. The ECtHR rarely awards compensation for environmental harm,⁴⁰ making it unlikely for climate victims to receive adequate damages there. By contrast, in Daniel Billy et al v Australia,⁴¹ the UN Human Rights Committee ordered “adequate compensation” for climate harm, but the amount was left to Australia’s discretion.

Although this indicates a greater willingness of treaty bodies to award compensation than the ECtHR, full compliance with treaty body decisions is low, at only 26.5%.⁴² In this respect it is especially noteworthy that Australia rejected the Human Rights Committee’s award of compensation in Daniel Billy.⁴³ As such, the prospects of receiving compensation from a developed state following rights-based litigation for climate change harm appear limited, due to the types of awards given by courts, the discretion left to the state when ordered to provide compensation by treaty bodies, and/or the recalcitrance — S. 262 —of states in implementing non-binding decisions.⁴⁴ These limitations seriously challenge the potential of human rights litigation for loss and damage, if compensation is an integral element of the concept.

Ultimately, irrespective of the nature of the remedy awarded, national litigation might offer solutions for the “south within the north,” such as that envisioned in scenario 2, concerning Sámi litigation against Norway for adverse impacts of climate change on the right to culture, but is less relevant in contexts like the small island developing states, who contribute little to climate change. It seems unjust to hold them accountable for damages within their borders, given their limited contributions to GHG emissions. Even if pursued, if remedies are awarded on the basis of partial responsibility for partial causation, compensation would be negligible. In addition, national litigation is clearly unable to get at the climate justice issue at the heart of the loss and damage debate in the international climate change regime, as it cannot deliver distributive justice between states.

b.Oblique Litigation (National): Individual v Territorial Corporation

While less common than individual v state climate change litigation, individuals have successfully held corporations accountable for carbon-intensive activities, as seen in Milieudefensie et al v Royal Dutch Shell.⁴⁵ National litigation can thus target a range of actors for climate change harm, including corporations. If corporations that significantly contribute to climate change are recognized as duty bearers for loss and damage, this kind of litigation could provide remedies for individuals.

However, the Milieudefensie case, like Urgenda and KlimaSeniorinnen, only addresses future harm and emissions reduction, raising questions about how this logic could or would be applied with respect to specific causation. These cases are more likely to benefit individuals where such corporations are domiciled, but they cannot address the climate injustices faced by individuals in climate vulnerable developing states. The potential of these claims for victims in developing states is discussed further in section 4(e).

c.Diagonal Litigation (Transnational): Individual v Non-territorial State

Individuals in developing states have no rights to access assistance from the Loss and Damage Fund. Pursuing litigation against states other than their own (diagonal litigation) thus becomes attractive. This type of litigation has been rare in the climate context, with early cases showing little success. In Duarte Agostinho and Others v Portugal and 32 Others, the ECtHR dismissed the case, partially on the grounds that the jurisdiction under the ECHR is primarily territorial.⁴⁶ The Court rejected the argument that the global nature of climate change and cumulative effect of GHG emissions should extend states’ obligations beyond their border, citing the risk of an “unlimited expansion” of extraterritorial jurisdiction.⁴⁷ Additionally, in KlimaSeniorinnen, the ECtHR held that states’ obligations to mitigate climate change are limited to their own territory.⁴⁸ Holding European states, which are high per capita emitters, accountable for the harms to which they contribute abroad through GHG emissions will thus not be possible under the ECHR.

UN bodies have taken a broader view. The Office of the High Commissioner of Human Rights concluded that state obligations under international human rights law “in the context of climate change (…) extend to all rights holders and to harm that occurs both inside and beyond boundaries.”⁴⁹ To this end, “States should be accountable to rights holders for their contributions to climate change.”⁵⁰ The Committee on the Rights of the Child reaffirmed this in Sacchi et al v Argentina et al, drawing on the Inter-American Court of Human Right’s Advisory Opinion on the Environment and Human Rights, to emphasize that states are responsible for transboundary harm if their emissions cause damage to children’s rights abroad.⁵¹ The UN Secretary General echoed this sentiment, albeit in more hortatory language, finding — S. 264 —that states should, as a matter of their international human rights obligations, “address extraterritorial impacts”⁵² of climate change.

Individuals may therefore have more success holding states accountable for climate change impacts through the UN human rights system than in the ECtHR. Notably, all state parties to the ECHR are party to several of the core international human rights treaties⁵³ and, as such, it would be possible to hold these, and other, states accountable for their contributions to climate change under the UN human rights system. Nevertheless, while the UN bodies can issue authoritative findings, the enforcement of them is weak. In practice, states are less likely to comply with treaty body decisions compared to ECtHR rulings.⁵⁴ For example, ECHR states only fully comply with 28.2% of treaty body decisions but with 75.9% of ECtHR judgments.⁵⁵

Thus, although there are no examples of diagonal litigation from the UN system in which applicants have won a climate change claim, the prospects of securing such a victory appears greater before these bodies than before the ECtHR. Nevertheless, receiving remedies is less certain. As such, the potential of litigation before these bodies to deliver loss and damage remedies may be limited to declaratory justice, with little scope for compensation. Effective justice may ultimately therefore depend on political action, through the full operationalization of the Loss and Damage Fund, with recourse for individual climate victims, rather than relying on litigation alone.

d.Horizontal Litigation: Interstate

There is no precedent of interstate climate change litigation, so assessing its potential to deliver remedies for developing states is speculative. However, several limitations make this form of litigation unlikely to fill the remedial loss and damage gap.

Interstate litigation is possible through the ECtHR and some of the UN treaty bodies,⁵⁶ like the Human Rights Committee and the Committee on the — S. 265 —Elimination of Racial Discrimination.⁵⁷ However, since only ECHR state parties can bring cases to the ECtHR — and no developing states are parties — this venue offers little help for climate change harms in those regions. Additionally, while claims can be brought to certain UN bodies, both state parties involved must have ratified the relevant treaty and its interstate complaints mechanism. Few least developed countries and small island developing states, the most vulnerable to climate change impacts and in need of assistance, have done so, limiting this avenue.⁵⁸ Even when interstate litigation is possible, it often results in declarations of violations and non-repetition orders, rather than compensation.⁵⁹ As a result, interstate litigation is unlikely to satisfy the financial needs of developing states to address loss and damage.

Finally, interstate litigation may hinder progress on international climate change negotiations. The adversarial nature of litigation conflicts with the cooperative spirit needed for successful negotiations. Ensuring that the Loss and Damage Fund is filled and fully operationalized is wholly dependent on successful international climate change negotiations to this end. Indeed, the establishment of the Fund, while flawed, represents significant diplomatic progress. The establishment of funding arrangements was a clear “red line” for major actors like the US and the European Union (EU),⁶⁰ and thus a condition of the adoption of the Paris Agreement at all. Although it has been a slow and arduous process, the fact that such a Fund has been agreed is a major step, that is not to be underestimated. Disrupting this momentum through litigation could be counterproductive, especially given the limited chances of securing compensation.

e.Oblique Litigation (Transnational): Individual v Non-territorial Corporation

As discussed in section 4(c), individuals currently have no direct access to assistance from the Loss and Damage Fund. However, transnational litigation between individuals in developing states and corporations in developed states offers an alternative remedial pathway. So far, such litigation, especially — S. 266 —rights-based claims against corporations, has been limited. The closest example is the Philippines Human Rights Commission’s Carbon Majors Inquiry,⁶¹ which found that major fossil fuel producers were responsible for climate change impacts on human rights in the Philippines. The Commission recommended various measures but could not legally enforce them or order compensation.⁶²

Unlike courts, non-judicial bodies like human rights commissions can conduct broader investigations, without being instigated by a litigant, which is particularly useful for systemic climate issues. The ability of these institutions to investigate corporate actors domiciled outside of their territorial jurisdiction is also a particular strength here. However, their competence to hold corporations accountable is limited to making recommendations, relying on corporate goodwill for implementation. This makes them less effective in delivering remedies like compensation,⁶³ though they can highlight corporate responsibility for climate harm. Therefore, similarly to the UN human rights bodies, the ability of these institutions to address the remedial gap for loss and damage hinges on whether acknowledgment of the harm is sufficient.

Transnational litigation between an individual and a corporation typically draws on legal frameworks beyond human rights law, though human rights can inform interpretation of other national law (as seen in Milieudefensie in section 4(b)). Human rights may come to play a role in cases like Lliuya v RWE (recently rejected by the Regional Court of Hamm), in which a Peruvian farmer suing the German energy company for its contribution to climate change sought damages proportionate to the company’s global emissions (0.47%).⁶⁴ A similar approach has been adopted by applicants in Asmania et al v Holcim (scenario 8), in which four Indonesian nationals have sought compensation for climate change harm proportional to Holcim’s (a Swiss building materials company) contributions to climate change.⁶⁵

The Lliuya case has been identified as a clear example of loss and damage litigation in scholarship.⁶⁶ Indeed, the case is unique from the others reviewed — S. 267 —in this chapter, in which applicants have typically sought prevention-oriented remedies, as opposed to remedies for manifested harm. However, the plaintiff’s claim in Lliuya concerned expected costs associated with setting up flooding protection. Although these costs are likely to be incurred, they have not been incurred yet, nor has damage yet been done to his property. The claim thus appears more akin to a claim for assistance with adaptation measures and indicates an understanding in (the relatively sparse) scholarship that, provided that a plaintiff seeks compensation for (anticipated) damages, then it is a loss and damage claim.⁶⁷

The claim made in Asmania et al v Holcim, adopts a similar approach, seeking assistance with adaptation measures, as well as increased emissions reductions for the corporation. Unlike the plaintiff in Lliuya, however, the plaintiffs in Asmania also seek compensation for climate change harm already incurred. At the time of writing, the method by which the plaintiffs calculate the respondent’s proportional share of such compensation remains unknown. However, if the plaintiffs follow Lliuya’s approach, the plaintiffs in both cases would only aim to secure compensation for a marginal portion of the harm they expect to incur. As such, litigation following this strategy is unlikely to result in full compensation. Litigation of this kind can promote climate justice by holding major emitters accountable, though it may not deliver full compensation or align with the original conception of loss and damage, which called for compensation from developed states. Nonetheless, it remains one of the few avenues available for securing compensation, particularly in the transnational context. While Lliuya was ultimately unsuccessful, and Asmania has not yet achieved concrete results, such cases could in principle address two critical elements of loss and damage — compensation and climate justice — but not fully and not as originally conceived in either respect. Although Lliuya and Asmania have not (yet) provided remedies for the plaintiffs and are unlikely to offer full compensation, similar claims brought on different grounds, against other respondents, or in other jurisdictions may still succeed.

5.Conclusion

In the absence of a Loss and Damage Fund that can fully compensate those harmed by climate change, litigation offers an alternative pathway. However, based on the cases explored in this chapter, litigation seems effective only in narrow circumstances. Rights-based climate change litigation has been successful nationally, particularly in challenging state and corporate contributions — S. 268 —to climate change, but it remains uncertain whether courts would apply similar reasoning to concrete climate harms or hold states or corporations accountable for them. Even when they do, compensation is rarely awarded. The exception here is the Daniel Billy case, where compensation was awarded but never paid. Thus, national litigation may be able to deliver climate justice for the “south within the north” in the form of acknowledgment of climate harm but is unlikely to provide financial remedies.

While litigation can deliver some justice for climate-vulnerable individuals in developed states, it does not address the central issue of climate justice for developing states and their populations harmed by major emitters. Transnational litigation has shown limited success, with diagonal claims like Duarte Agostinho failing, and horizontal, interstate claims not yet pursued. However, there may be potential in diagonal quasi-litigation before the UN treaty bodies, as indicated by Sacchi and Daniel Billy. Here, recognition of harm and the award of compensation is possible, but state compliance remains a crucial challenge, as it also was in the transnational oblique Carbon Majors Inquiry. Transnational claims may therefore be able to deliver declaratory climate justice, by acknowledging the harm and possibly ordering compensation, but are unlikely to result in victims receiving funds.

Another issue is the adequacy of compensation. In Daniel Billy, the UN Human Rights Committee did not specify the amount of compensation, leaving its determination to the discretion of the state. By contrast, Lliuya is seeking a specific, proportionate amount based on RWE’s contribution to GHG emissions. If the claim had been successful, the sum sought would clearly not have been adequate to compensate the applicant fully for the harm litigated.⁶⁸. These examples highlight that even if compensation is awarded, it is often inadequate and may not be paid at all.

In light of the above, litigation offers limited potential to remedy climate change loss and damage. It may provide declaratory climate justice through national and transnational venues, but offers little in terms of compensation due to non-compliance, inadequate awards and the piecemeal nature of litigation, thus not addressing the systemic nature of climate change harm. Furthermore, the high cost of litigation, especially when unsuccessful, makes it a risky avenue for climate victims. For the climate-vulnerable in developed states, litigation may be the only option, as they are ineligible for payouts from the Loss and Damage Fund. Individuals in developing countries may have better chances at securing payouts from the Fund than through litigation. Developing states must weigh the possible benefits and risks of interstate litigation — S. 269 —carefully, given its limited precedent and its potential to derail loss and damage negotiations. Ultimately, only a concerted approach at the international level through full operationalization of a sufficiently financed Loss and Damage Fund could ensure that climate change victims in developing states are reliably remedied for the harms they incur, whereas litigation may be most suitable for climate vulnerable individuals in developed states.