International Liability Schemes and Claims in Climate Change Litigation

Abstract

Sources of claims in climate change litigation may easily be identified under substantive public international law. However, when it comes to following procedure that should result in realising such a claim, the process is a frustrating one for potential litigants. The issue of state responsibility in public international law has to be balanced against the sovereign right of a state to conduct itself in any way it pleases within its own territory. This is added to the fact that the current structure of international law is replete with a number of obstacles that may prevent victims of climate change impact from obtaining justice against greenhouse gas emitters. Thus, the current structure of international law makes it unlikely for victims of climate change to find justice through international dimensions. International dimensions in this paper denote all procedures designed to help victims of climate change impact challenge greenhouse gas emitters, regardless of whether the proceedings will produce a legally binding decision or not. Striking the right balance would require litigants to be able to make claims before an international tribunal that possesses the jurisdiction to entertain claims against states and other non-state entities. This article identifies such forums and analyzes its effectiveness in litigating claims against states that fail to comply with policies and measures that seek to mitigate climate change, such as reducing greenhouse gas emission. While such mechanisms exist, their effectiveness in dealing with violators may be unsuccessful, thus the need to set out an international liability scheme for claims in climate change litigation where claims for loss and damage are in issue.

Key words: climate change litigation; claims under climate change; public international law; international liability scheme; loss and damage.