International Liability Schemes and Claims in Climate Change Litigation

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

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

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

Litigating Loss and Damage as a Panacea for Abatement of Climate Change

In this era of pursuit of sustainable development climate change has been recognized as a global threat as it transcends boundaries in its causes and effects. Much of the aggravated increases in global climate are attributable to human activities. It becomes imperative that change in human behaviour and consequently control of such aggravating factors can safely be achieved through law and legal regulation. Climate change litigation is, in large part, a multi-pronged attempt by individuals, groups, non-governmental organizations (NGOs) and governments, to use the instrumentalities of the court to pressurize industrial greenhouse gas emitters and the government to reduce or regulate greenhouse gas emission. This paper advocates that the judiciary can be an appropriate forum for resolving issues surrounding the harm caused by global warming and climate change. It examines the rationale as well as the prospects of using the judiciary as a means of achieving a sustainable management of the climate system. It proffers strategies that will make litigation a viable option in abatement of climate change and in the resolution of disputes arising from the impact of global climate change. The concludes that  an effective climate change advocacy demands for legal practitioners, environmental consultants and regulatory personnel who are competent, sufficiently well-informed and motivated to drive both the spirit and letter of the policies and other legal instruments through the court system. Key words: litigation; loss and damage; abatement; judiciary; sustainable development; greenhouse gas emitters