Overcoming Barriers to Claims for Loss and Damage in Climate Change Litigation

Abstract

The issue of climate change is now a familiar one. Most academics and other affiliated fields agree that climate change is or should become a mainstream issue. There is currently a lot of pressure on governments to take it seriously and legislate against actions that cause climate change. The extent to which this is in fact possible is currently debatable. Legal mechanisms are arguably at an embryonic stage. Therefore, it has become necessary to suggest the means in which loss and damage from climate change can be litigated in domestic courts and at the international level, knowing that the impact of climate change cuts through international boundaries. This issue can no longer be left to interstate diplomacy which has so far been unsuccessful in effectively tackling this matter. Litigating loss and damage against impacts caused by climate change therefore appears to be an attractive alternative and possible avenue to galvanizing greenhouse gas emitters to cut their emissions knowing that there may be some legal consequences if they renege on emission reduction targets.  However, because of the international dimension of climate change impacts, litigants may not find the route very smooth. To this end, this paper examines the possible barriers that may lie in wait for potential litigants. The paper also seeks to suggest possible ways of overcoming these barriers.

Keywords: loss and damage; impact of climate change; litigation as alternative method; barriers to litigation; overcoming barriers to litigation.