The Rising Tide of Rights: Addressing Climate Loss and Damage through Rights-Based Litigation

Abstract

This article offers a comprehensive analysis of rights-based climate litigation aimed at addressing climate change-induced loss and damage, underlining its potential as a transformative force amid the minimal progress towards a coordinated global response on this topic. It builds on literature highlighting the potential of rights-based climate litigation to fill the gap in accountability for climate change and its consequences, noting that research to date has not systematically analyzed the remedies that plaintiffs have sought or secured. By focusing on remedy claims, this study illuminates the capacity and the limitations of such litigation to unlock redress for loss and damage while highlighting its reciprocal relationship with international negotiations. This synergy implies a promising trajectory towards a more equitable climate governance framework, despite the complexities and challenges inherent in this rapidly evolving field.

1. INTRODUCTION

Around the globe, loss and damage from climate change are becoming increasingly tangible. Land is being swallowed by the sea, loved ones killed in climate-related events, and food and water scarcity worsening as a result of unpredictable weather patterns.¹ These forms of loss and damage span the spectrum from irreversible impacts, such as loss of life and ecosystems, to repairable damage, such as damage to infrastructure.² A growing body of scholarship and practice highlights the human rights dimensions of these diverse forms of loss and damage, giving weight to a call for global responses capable of preventing and minimizing interferences with rights and redressing violations.³

This intersection of climate change, loss and damage,⁴ and human rights also illuminates a distinct justice dimension.⁵ Those who are hit first and hardest by climate impacts have done the least to cause them. In contrast, those who have benefited most from centuries of fossil fuel exploitation now possess a disproportionate resilience and adaptive capacity, accrued largely from the wealth derived from these processes.⁶ The financing of loss and damage represents a critical challenge within this justice conundrum. Currently, the financial burden of loss and damage lies with climate-vulnerable states, compounding their economic vulnerabilities and perpetuating a cycle of poverty and susceptibility to climate impacts.

Promising signs of change emerged before the 26^th Conference of the Parties (COP26) to the United Nations Framework Convention on Climate Change (UNFCCC),⁷ held in 2021. Scotland and Wallonia both pledged dedicated funding for loss and damage in developing countries.⁸ Denmark became the first state party to the UNFCCC to make a similar pledge, and a cascade of other nations followed.⁹ These commitments set the stage for COP27, which took place in 2023, where an in-principle agreement was reached to establish a new Loss and Damage Finance Facility.¹⁰ The concept of funding loss and damage through a grant-based system aligns with the proposals of the Bridgetown Initiative, led by Barbados, which advocates comprehensive reforms to the international financial system to enable developing countries to build resilience against climate-related shocks.¹¹ Despite these promising developments and proposals, critical questions about the precise arrangements of the Loss and Damage Finance Facility remain unresolved.

Within this multifaceted domain of climate justice, the phenomenon of rights-based climate litigation is gaining momentum.¹² This bottom-up strategy leverages human rights to hold governments or corporations to account for their insufficient efforts to address climate change and its consequences.¹³ In doing so, it has emerged as an important method of resistance for those most affected by the climate crisis, with a growing number of high-profile cases filed in the global south,¹⁴ and by Indigenous communities¹⁵ and young persons.¹⁶ This ‘rights turn’¹⁷ in climate litigation also holds significant promise for addressing loss and damage. By foregrounding the human impacts of climate change, the moral implications of climate-related harm and the ensuing demand for accountability become evident.¹⁸ Crucially, this quest for accountability is anchored in the legal fabric of human rights law, with the entitlement to a remedy for harm ingrained in the very concept of human rights¹⁹ and firmly entrenched as a distinct right in both custom²⁰ and treaties.²¹ Hence, by holding entities – be they governments or corporations – accountable under human rights law for their contributions to climate change, they will be impelled, at least in theory, to provide tangible remedies for the harm caused.

To fully grasp the potential of rights-based climate litigation to redress the severe implications of loss and damage, it is essential to examine the ways in which such litigation seeks to secure – or fails to secure – remedies for those most affected.²² Current research has only tangentially explored this aspect, focusing primarily on the legal arguments presented,²³ the interplay between courts and litigants,²⁴ and the formation of new jurisprudential perspectives.²⁵ The limited focus on remedies in rights-based climate scholarship may be as a result of a general preoccupation with rights, rather than remedies, among litigators, judges, and indeed scholars,²⁶ leaving the topic of remedies in rights-based climate litigation in a sort of academic limbo.²⁷ In addition, it should be highlighted that rights-based climate change litigation encompasses a plethora of strategic approaches, often with a primary focus on mitigation and, to a lesser extent, adaptation. Further still, most rights-based climate cases that do address loss and damage are still pending. While these factors may explain the scarcity of scholarship on this theme, it leaves a considerable gap in our understanding of this evolving field, with scholars resorting to speculation about the extent to which human rights law serves ‘as a gap-filler to provide remedies [for climate harm] where other areas of the law do not’.²⁸

This article seeks to fill this gap by providing the first comprehensive analysis of rights-based climate litigation aimed at addressing loss and damage. Rights-based climate litigation, as defined in this article, explicitly includes human rights arguments in the plaintiff's submissions and raises material issues related to climate change.²⁹ Among these cases, the article focuses specifically on those that address loss and damage within the ambit of remedies pursued or granted.³⁰ To put this in perspective, of the 160 rights-based climate change cases (31 international and 129 domestic), 24 (10 international and 14 domestic) can be classified as addressing loss and damage in remedies sought or granted. Therefore, 15% of all rights-based cases (32.2% of international and 10.8% of domestic) can be considered as addressing loss and damage in connection with remedies.³¹

By focusing on remedies sought and awarded or denied in rights-based climate cases, the article provides empirical insight into the actual and potential efficacy of this emerging litigation stream as a mechanism for redressing loss and damage. Throughout the article, attention is paid to the array of challenges identified by previous research³² – ranging from procedural hurdles such as standing,³³ to intricate legal and evidentiary challenges like causation,³⁴ and issues of extraterritoriality.³⁵

It should be noted that most rights-based climate cases to date have been brought against states rather than corporations,³⁶ with some notable exceptions.³⁷ In the loss and damage cases considered in this study, four out of the 14 domestic cases named a company as a defendant. This number may be expected to rise as laws establishing a due diligence standard for private actors are being enacted at domestic and regional levels in several parts of the world, requiring compliance with human rights in global supply chain operations,³⁸ and opening the door to litigation.³⁹ More generally, the question of apportionment of responsibility between states and private actors remains unanswered.⁴⁰

The remainder of this article unfolds as follows. Section 2 delves into domestic rights-based climate cases, taking the remedy claims as a starting point. This granular exploration of claims is followed by an evaluation of the outcomes of those cases that have progressed to decisions, and reflections on discernible trends and their potential implications. Section 3 mirrors this approach for an analysis of the international cases. Section 4 serves as a synthesis, weaving together the threads of insights drawn from both domestic and international cases.

This exhaustive inquiry illuminates the potential of rights-based climate litigation as a transformative force in redressing climate-related loss and damage while also acknowledging the complexities and challenges inherent in this rapidly evolving field. Furthermore, it underscores the synergistic relationship between courtroom battles and international negotiations, illustrating how insights from the courtroom can inform and enrich the discussions at negotiation tables and vice versa. It posits that, navigated judiciously, this synergy could steer us towards a more equitable climate governance framework, one that is deeply anchored in human rights and principles of justice.

2. LOSS AND DAMAGE CLAIMS IN RIGHTS-BASED CLIMATE CASES: DOMESTIC LITIGATION

This section examines the various loss and damage claims pursued in domestic rights-based climate cases and situates their implications within the broader context of climate litigation. Examining these claims provides valuable insights into the evolving landscape of climate litigation and the strategies employed by plaintiffs in seeking to address loss and damage. Assessing outcomes obtained thus far sheds light on the extent to which courts and human rights bodies have started to contribute to the provision of redress for loss and damage under their respective mandates. Further, it offers insights into the promises and limitations of specific avenues, arguments, strategies, and fora for addressing loss and damage through the lens of human rights.

2.1. An Overview

To date, 14 domestic rights-based climate cases have sought some form of redress for loss and damage. Broadly speaking, these cases have sought redress for both economic and non-economic loss. Table 1 (in the Appendix at the end of the article) provides an overview of the cases and their corresponding loss and damage claims.

Among the 14 cases are five involving domestic plaintiffs who seek redress from their own government. These include two lawsuits pending in Uganda, where the plaintiffs sought monetary compensation for loss and damage from the government.⁴¹ While claiming compensation in very generic terms, the articulation of these claims underscores the tangible damage suffered by the affected communities and the need for compensation to recognize and rectify these impacts.⁴² Significantly, one of the cases puts forth an additional request for an order mandating the government to cover the costs of resettlement from disaster-prone areas.⁴³ This claim reflects the growing attention to the need for compensation to address the costs associated with climate displacement, which represents a form of non-economic loss.

In two other cases against a national government, Notre Affaire à Tous and Others v. France,⁴⁴ and PUSH Sweden, Nature and Youth Sweden and Others v. Government of Sweden (Swedish Magnolia case),⁴⁵ the plaintiffs sought a symbolic amount of one euro for damages suffered as a result of climate change. In Notre Affaire à Tous, the one euro claimed in compensation from the French government was intended to emphasize the illegality of the government's failure to implement adequate mitigation measures. In a similar vein, the Swedish plaintiffs’ claim for damages of one Swedish crown per person served to highlight the illegality of the sale by state-owned energy company Vattenfall of German coal assets to a Czech company, a sale expected to result in increased emissions of greenhouse gases (GHGs).⁴⁶ Used in this way, compensation affirms, reinforces, and concretizes fundamental values in the face of the climate crisis, fostering public awareness and potentially catalyzing policy changes.⁴⁷

Last in this subgroup is Anton Foley and Others v. Sweden (Aurora case),⁴⁸ a class action suit filed by a group of over 600 young people, currently pending before the Swedish courts. The case challenges the adequacy of Sweden's climate change mitigation policy by relying on the European Convention on Human Rights.⁴⁹ The case is significant from a loss and damage perspective because it explicitly asks the Court to determine that the alleged violation entails an obligation to grant reasonable compensation.⁵⁰ Further, the case stands out because of its strong focus on the accountability of historical emitters for their disproportionate contributions to the climate crisis,⁵¹ drawing attention to the ‘historical debts’ of developed countries⁵² and thus aligning itself with a more global south-friendly stance.⁵³

Along the same lines but in different parts of the world, cases led by plaintiffs from vulnerable or marginalized communities in the global south are taking on major historical polluters as defendants. These cases are marked by their transnational dimension, enabling plaintiffs in the global south to accentuate the historical responsibility of developed states and corporations for causing climate change. This, in turn, could potentially lead to a rebalancing of the skewed power dynamics and directly tackle the unequal burden of climate change impacts. Owing to their transnational character, these cases are well positioned to create global ‘ripple effects’ and serve as catalysts in the ongoing international negotiations on climate loss and damage.⁵⁴

One prominent example is the Carbon Majors petition filed before the Philippines Commission on Human Rights,⁵⁵ and similar petitions filed before national human rights institutions in Indonesia⁵⁶ and Malaysia.⁵⁷ Rather than seeking direct compensation from national governments, these cases call for recommendations urging policymakers and legislators to develop effective mechanisms for holding private polluters, including businesses, accountable for human rights violations resulting from climate change.⁵⁸ These petitions, particularly those in the Philippines and Malaysia, focus specifically on corporate accountability, seeking legislative changes that enable climate change victims to recover damages from fossil fuel companies based on their contributions to climate change.⁵⁹ By highlighting the role of transnational corporations in perpetuating climate change impacts and demanding accountability based on existing legal doctrines, petitions like these signal how the costs of loss and damage may be shifted away from victims towards historical polluters.⁶⁰

Another three rights-based cases seek redress for loss and damage directly from corporations. The case of Baihua Caiga et al. v. PetroOriental S.A. stands out for its innovative approach, demanding reparations from an oil company for the impacts of climate change on an Indigenous community.⁶¹ The reparations sought, in this case, extend beyond violations of the constitutional rights of Indigenous peoples (notably the right to a healthy and ecologically balanced environment) to include violations of nature's right to have its life cycles respected, as protected under Ecuadorian law. This multifaceted approach aligns with the emerging field of ‘earth jurisprudence’ or ‘wild law’,⁶² and demonstrates the integration of environmental and human rights principles in seeking remedies for loss and damage caused by corporate activities. Importantly, as the defendant company is a subsidiary of two Chinese transnational corporations, this is also a case with a transnational dimension.

Similarly, Four Islanders of Pari v. Holcim, another transnational rights-based climate case, highlights the responsibility of corporations for climate change-related damage. The compensation sought in this instance involves a financial contribution to adaptation measures based on projected climate impacts attributable, in part, to the Swiss cement company's historical contributions to atmospheric emissions.⁶³ This approach likewise seeks to shift the financial burden of addressing climate impacts onto the entities most responsible for exacerbating the problem. As discussed below, it advocates an approach of quantifying responsibility for reparations based on entities’ respective contributions to global emissions, an approach that holds significant promise for loss and damage litigation.

The most recent case in this category, Municipalities of Puerto Rico v. Exxon Mobil Corp. – in which cities are claiming punitive and compensatory damages from fossil fuel companies for losses incurred as a result of the ‘apocalyptic’ 2017 hurricanes – further illustrates the growing attention to corporate responsibility for climate-related human rights harm.⁶⁴ Notably, this is the first case in which cities (as a class of plaintiff) claim damages from fossil fuel companies for climate harm. Here, the damages sought are for both costs already incurred and costs that the plaintiffs are likely to incur as a result of climate impacts.⁶⁵

Finally, three domestic cases have sought remedies related to cross-border climate displacement. The earliest of these was a claim before the Australian Refugee Review Tribunal filed by a citizen of Kiribati who sought protection from Australia under the Refugee Convention.⁶⁶ Citizens of Tuvalu⁶⁷ and Kiribati⁶⁸ have filed similar protection claims before courts and tribunals in New Zealand. These cases demonstrate the creative utilization of available legal avenues by individuals seeking recognition as ‘protected persons’ under relevant domestic migration laws based on the threats posed by climate change.⁶⁹ They may also be understood as transnational, with plaintiffs from the most climate-vulnerable states seeking to hold high-income states accountable for protecting their rights from climate impacts manifesting in their home states. However, as discussed in the following section, the lack of success in these cases highlights the challenges in addressing such cases within existing legal frameworks.⁷⁰

In sum, the diverse range of loss and damage claims in domestic rights-based climate cases illustrates evolving strategies employed by plaintiffs to seek redress for the adverse effects of climate change, recognizing the need for legal remedies, including monetary compensation, corporate accountability, and addressing climate-induced displacement. Collectively, these claims signal a shift towards holding responsible parties accountable and demanding systemic changes to address climate-related harm. The following section of this article will analyze the outcomes of cases that have resulted in decisions, providing insights into the effectiveness of legal strategies employed and the potential impact of these claims within the broader framework of climate litigation.

2.2. Assessing Results and Emerging Trends

The outcomes obtained thus far in domestic rights-based cases related to loss and damage have been varied, with some remarkable successes and some notable failures.

The Notre Affaire à Tous case in France is an example of a partial success. The Administrative Court of Paris acknowledged the moral prejudice suffered by the plaintiffs caused by France's climate inaction, awarding a symbolic euro as compensation.⁷¹ However, it stopped short of awarding monetary compensation for ecological damage, finding that the plaintiffs had not demonstrated the state's inability to repair the harm caused.⁷² Instead, the court issued an order for the state to rectify the damage caused by its inaction.⁷³ The Court did not specify what reparation means, reflecting what Roach terms ‘remedial modesty’.⁷⁴ It is also interesting to note that the hurdle of establishing standing was overcome in large part by the design of French law, which lays down a lower admissibility threshold for environmental claims filed by non-profit environmental protection associations.⁷⁵

In contrast, the Carbon Majors case offered a pioneering outcome. The Commission on Human Rights of the Philippines inquiry stands out for its inclusive process that brought together victims, scientists, forensic experts, legal and human rights experts, and representatives of fossil fuel companies.⁷⁶ This culminated in the world's largest and most comprehensive collection of formal testimonies, expert analysis, and documentary evidence regarding the responsibility of fossil fuel companies for climate change and related loss and damage. The Commission's final report, spanning 160 pages, exposes the deceptive practices of these companies, including their intentional misleading of investors, regulators, and the public about climate science.⁷⁷ It recommends that states devise new mechanisms for loss and damage, and compensate victims, recognizing the duty of the Carbon Majors to remediate their impacts.⁷⁸ Of significance is how the Carbon Majors petition approached the issue of causation. It recognized that the Carbon Majors collectively contribute to global climate change and that emissions by one company are not distinguishable in their effects from emissions by other companies.⁷⁹ However, it referenced research that detailed the respective contributions of Carbon Majors to global emissions, and argued that this research should serve as a basis for the Carbon Majors’ responsibility, jointly and severally, for contributing predominately to climate change and its resulting impacts that are interfering with the enjoyment of human rights.⁸⁰ Although the Commission's report is not legally binding, its implications for global power dynamics are significant. It sets a precedent for addressing responsibility for loss and damage from a human rights perspective while emphasizing the possibility of prosecuting corporations for climate-linked human rights violations anywhere in the world.⁸¹ As such, it signifies a shift in the legal landscape towards holding those who have contributed most to climate change accountable for the harm they have caused.⁸²

However, not all cases have been successful. The Baihua Caiga et al. v. PetroOriental S.A. case in Ecuador was dismissed for lack of evidence.⁸³ Still, Ecuadorian courts have recognized violations of human rights and rights of nature in other environmental cases, reflecting an evolving judicial landscape.⁸⁴ For instance, another Ecuadorian case involving the malpractices of an oil company that initially was dismissed for lack of evidence was subsequently won on appeal.⁸⁵ The potential of this case in demanding accountability from polluters thus remains alive, especially given the plaintiffs’ intent to appeal.⁸⁶

In contrast, PUSH Sweden v. Government of Sweden, dismissed on the ground of no damage being established, appears to signal the limitations of the chosen litigation strategy. The courts found there to be no injury experienced by the plaintiff from the relevant conduct, classifying the claim as one based on a hypothetical risk assessment of future environmental and health effects of the sale of the power plant, as opposed to actual economic loss,⁸⁷ thereby indicating the pitfalls of Swedish tort law. The case also relied on little case law and international agreements, thus attracting criticism of its strategy.⁸⁸

An alternative approach more firmly grounded in human rights arguments is currently being pursued in the Aurora case.⁸⁹ This case benefits from the Swedish Climate Act,⁹⁰ which came into effect in 2018, and relies on a plethora of case law. Thus, its outcome could pave the way for future rights-based climate cases in the Swedish courts. These developments also signal a potential for hybrid cases with claims for redress for human rights violations and related torts involving tangible loss and damage from climate change.

The Teitiota v. Chief Executive case, like all other cases brought thus far seeking remedies related to cross-border climate displacement, failed to succeed owing mainly to the narrow definition of a ‘refugee’ according to international refugee law.⁹¹ Consequently, courts and tribunals find no ‘serious harm’ suffered by the plaintiffs,⁹² though their fear of the devastation that rising sea levels will bring to their home countries is backed by substantial scientific evidence.⁹³

Nonetheless, a spark of hope was provided by the Supreme Court of New Zealand in obiter dictum in Teitiota: it recognized that climate change impacts could potentially create a pathway for refugee protection or protected person jurisdiction in future cases.⁹⁴ At a broader level, this case underscores the need for comprehensive remedies for non-economic losses, such as the recognition of rights, protection and material support for those affected by climate displacement.⁹⁵ As scholars have highlighted, realizing such remedies requires international cooperation and the development of equitable law and governance frameworks, taking into account the different responsibilities and capacities of states.⁹⁶

It is worth recalling in this context that domestic courts have already made pronouncements that can provide stepping stones for apportioning responsibility for climate loss and damage. A relevant example is Urgenda Foundation v. The State of the Netherlands. The Supreme Court of the Netherlands interpreted the principle of common but differentiated responsibilities (CBDR-RC) as indicating that ‘partial fault means partial responsibility’.⁹⁷ This interpretation might be applied mutatis mutandis to reparations in loss and damage cases, highlighting the potential of CBDR-RC as a guiding principle for addressing questions of equity and fairness in allocating reparations for loss and damage.

The Four Islanders of Pari v. Holcim case (referred to formally as Asmania et al. v. Holcim), the first rights-based claim to seek ‘proportional compensation’,⁹⁸ presents an innovative approach to equity and fairness in climate litigation. To succeed in such claims, plaintiffs would need to present compelling evidence of the defendant's contributions to historic GHG emissions, coupled with attribution studies demonstrating the probability that certain climate impacts were the result of climate change.⁹⁹ In claims against certain fossil fuel companies, evidence of their efforts to mislead the public on the subject of climate change may also be relevant.¹⁰⁰ The wealth of evidence collected as part of the Carbon Majors inquiry could assist plaintiffs in these cases.¹⁰¹ Interestingly, the case seems to rely on contributory causation,¹⁰² referencing Holcim's production of 7 million tons of carbon dioxide (CO₂), 0.42% of all global industrial CO₂,¹⁰³ to argue that Holcim bears a significant and quantifiable share of the responsibility for the climate crisis and for the situation on Pari Island.¹⁰⁴ If this argument is accepted by the Swiss courts, it will have a tremendous impact on how injury is established in loss and damage litigation.

Zooming out again, it is difficult to generalize and map the hurdles faced in such domestic litigation given how case-specific some of these challenges are. For example, in the PUSH Sweden case, the plaintiffs' reliance on the future injury that would be caused by the sale of the lignite operations resulted in the case being dismissed owing to the specific requirement of Swedish tort law to establish actual injury.¹⁰⁵ A variation of the same argument succeeded before the Dutch courts in the Urgenda case,¹⁰⁶ owing primarily to Dutch law allowing non-governmental organizations (NGOs) to initiate public interest actions without an identifiable group of persons needing protection.¹⁰⁷ Similarly, the plaintiff in Notre Affaire à Tous and Others v. France was not required by French law to show injury arising from the defendant's conduct,¹⁰⁸ indicating just how forum-specific challenges are to loss and damage and, more broadly, rights-based climate litigation. Still, a common challenge that seems to trip such litigation is establishing a causal link between the injury cited and the conduct of the defendant.¹⁰⁹ What is required to overcome this is a radical shift in judicial attitudes akin to that assumed in Carbon Majors and Notre Affaire à Tous and Others v. France.

Overall, the cases discussed here reflect a promising move in climate litigation. Nevertheless, though loss and damage claims are still riddled with numerous challenges, together these cases reflect a move in climate litigation towards holding historical polluters accountable for loss and damage based on human rights. The Carbon Majors case, in particular, exemplifies the potential of quasi-judicial mechanisms in confronting the human rights implications of loss and damage in a holistic fashion, based on principles of equity and climate justice. However, it is crucial to temper optimism with recognition of the challenges ahead. While these early outcomes represent significant normative advancements and institutional breakthroughs, they have, so far, fallen short of providing tangible redress for victims. This shortfall can be interpreted as reflective of the still-maturing state of rights-based climate litigation, or as symptomatic of the difficulties in translating legal principles into effective remedies in a complex, multi-jurisdictional and politically charged context.¹¹⁰ As this burgeoning field continues to evolve, the outcomes of pending and future cases will play a critical role in shaping its trajectory. These cases will offer further insights into the potential of this innovative branch of litigation to bridge the persistent gaps in accountability and protection. By doing so, they will enhance our understanding of the evolving landscape of rights-based climate litigation, potentially illuminating new pathways towards redress.

Important lessons emerge also from loss and damage claims pursued in international rights-based climate cases, which are discussed in the next section. Integrating the insights gained from these cases results in a comprehensive assessment of the evolving landscape of rights-based climate litigation in addressing loss and damage.

3. LOSS AND DAMAGE CLAIMS IN RIGHTS-BASED CLIMATE CASES: INTERNATIONAL LITIGATION

3.1. An Overview

Rights-based climate litigation is no longer confined to domestic courts; international judicial and quasi-judicial bodies are increasingly being called upon to adjudicate on human rights infringements linked to climate change. This global trend is observed across various international bodies, including UN Human Rights Committee (HRCttee),¹¹¹ UN Committee on the Rights of the Child,¹¹² Inter-American Commission on Human Rights (IACHR),¹¹³ European Court of Human Rights (ECtHR),¹¹⁴ and European Commission on Social Rights (ECSR).¹¹⁵ Each of these bodies has received individual or collective complaints about human rights violations resulting from climate change. In addition, one climate case was filed by five United States (US) Indian tribes and the NGO Alaska Institute for Justice to ten UN Special Rapporteurs of the UN Human Rights Council against the US.¹¹⁶ Complementing these cases are two recent requests for an advisory opinion. The request by the UN General Assembly for an advisory opinion from the International Court of Justice (ICJ) seeks clarity on state obligations regarding climate change and human rights, and the legal consequences for states that have failed to meet them.¹¹⁷ A parallel advisory opinion has been requested from the Inter-American Court of Human Rights (IACtHR), focusing on the scope of state obligations in responding to the climate emergency.¹¹⁸ Additionally, two youth groups have recently submitted a request to the Prosecutor of the International Criminal Court to open an investigation against the Senior Executives of British Petroleum into their alleged crimes against humanity.¹¹⁹ The claim seeks reparations for victims of climate change using the loss and damage mechanism under Article 8 of the Paris Agreement.¹²⁰

Among the international rights-based climate cases, there are four cases where remedies related to loss and damage have been sought or granted. Each of these cases (detailed in Table 2 of the Appendix) plays a distinct role in the evolution of rights-based climate litigation. Among the four cases, the petition to the IACHR on behalf of children in Cité Soleil (Haiti) is noteworthy for its explicit reparations claim. It calls upon the IACHR to recommend that Haiti make reparation for the harm caused by waste disposal, with the petition highlighting the exacerbating role of climate change.¹²¹ It is worth noting that the focus on damage caused by the specific tangible act of dumping waste (as opposed to focusing on climate loss and damage exclusively) should make causation, injury, and reparations easier to establish. Moreover, while the petitioners primarily assign responsibility for reparations to the territorial state, the IACHR could potentially place these obligations within the broader context of international cooperation and assistance. This perspective aligns with the ongoing efforts within the Inter-American system to confront climate change, in particular the above-mentioned request for an advisory opinion from the IACtHR on the climate emergency.¹²² This request notes explicitly the common but differentiated responsibilities of states, asking the IACtHR to clarify how states should act ‘both individually and collectively to guarantee the right to reparation for damages generated by their acts or omissions in the face of the climate emergency, taking into account considerations of equity, justice and sustainability’.¹²³ Further, it asks how the obligations of cooperation between states should be interpreted, taking into account that the climate crisis is having a greater impact on some regions and populations, including the Caribbean, island and coastal countries and territories and their inhabitants.¹²⁴ By considering and operationalizing these obligations, both the IACHR and the IACtHR can contribute to the broader understanding of responsibilities, and promote a more comprehensive and cooperative approach to addressing loss and damage associated with climate change at the regional level.¹²⁵

Following this, Rights of Indigenous People, filed with the UN Special Rapporteurs, stands out as a significant claim for climate loss and damage suffered by Indigenous peoples, representing a comprehensive and transformative approach to reparations. The complaint demands action against the ongoing extraction of oil and gas, and emphasizes the need for material resources to safeguard against worsening climate impacts.¹²⁶ Furthermore, it seeks the establishment of a ‘relocation institutional framework’ to ensure adequate resources for accelerated adaptation efforts, protecting essential rights such as culture, health, safe drinking water, and adequate housing.¹²⁷ It also urges the Special Rapporteurs to recommend that the Louisiana state government hold oil and gas corporations responsible for damage to the Louisiana coast and compensate the victims.¹²⁸ However, this case goes beyond immediate concerns and addresses the historical injustice of unrecognized sovereign rights, calling for restoration and recognition of these rights.¹²⁹ By confronting power structures intertwined with the root causes of climate change and historical injustices perpetrated against Indigenous peoples, the case uses human rights to highlight the interconnectedness of various forms of oppression and the additional injustices perpetuated by climate change. It illustrates how human rights can be invoked to challenge the status quo of extractivism and demands transformative remedies that rectify systemic issues. At the same time, the case focuses less on linking the conduct of the US to climate change-induced harm and more on the inaction of the federal and the state governments to mitigate this harm.¹³⁰

The case of Teitiota v. New Zealand ¹³¹ further pushes the boundaries of climate litigation, casting light on the human rights implications of cross-border climate displacement. Following the rejection of his claim for asylum in New Zealand, the author of this petition sought a declaration that his right to life under the International Covenant on Civil and Political Rights (ICCPR)¹³² was violated as a result of his deportation to Kiribati, a state the land territory of which may become submerged within 10 to 15 years as a result of sea-level rise.¹³³ The petition highlighted the scarcity of habitable space, violent land disputes, and environmental degradation, including saltwater contamination of freshwater supplies, caused by climate change-induced sea-level rise in Kiribati. As the next section will emphasise, the case illustrates the urgent need to address the complex challenges posed by cross-border climate displacement to prevent and redress human rights violations. Irrespective of the outcome, framing the issue as a matter of rights and remedies rather than humanitarian assistance is significant in shifting the discourse, demanding greater accountability from states for protecting the rights of climate-displaced persons.¹³⁴

Finally, Billy et al. v. Australia, lodged by the Indigenous Torres Strait Islanders, alleged that Australia violated the islanders’ rights to life, family life, and culture by failing to take adequate action to reduce GHG emissions and assist the islanders in adapting to the adverse effects of climate change.¹³⁵ Of note, it was the first case filed before a UN body by inhabitants of low-lying islands against a state party on this basis. While the authors did not explicitly request any remedies relating to loss and damage, the Human Rights Committee addressed the question of reparations on its own initiative, recognizing the harm suffered by the Torres Strait Islanders as a result of Australia's inaction on climate change. Like the case presented by the Native American tribes, it highlights the need to rectify historical injustices and address the enduring impacts of colonization of Indigenous land. This case will be discussed in more detail in the following section, which examines the Committee's engagement with the issue of reparations and its implications for addressing loss and damage in rights-based climate cases.

In sum, this small but significant body of international rights-based climate cases showcases an evolving trend in climate litigation, aiming to hold states accountable under international law for their contributions to climate change and resulting loss and damage. The next section considers the results obtained thus far and their broader implications for climate justice.

3.2. Assessing Results and Emerging Trends

This section delves into the implications of the engagement of international human rights bodies with climate litigation involving loss and damage claims. Of the cases explored in the preceding section, only three have culminated in an outcome. As Luporini and Savaresi have pointed out, while the remedies that international human rights bodies can provide are limited, they do deliver guidance that can be used in domestic judicial proceedings and can help to bridge the accountability gap plaguing global climate governance.¹³⁶

The first of the cases is Rights of Indigenous Peoples, submitted to the ten UN Special Rapporteurs. Special Rapporteurs are not mandated to deliver binding or even quasi-judicial decisions; instead, they exert influence through softer mechanisms such as dialogue and fact-finding missions.¹³⁷ In this case the Special Rapporteurs submitted a formal communication to the US expressing concerns about the reported displacement of Indigenous people as a result of climate events and environmental impacts of oil and gas exploration in the US.¹³⁸ This outcome highlights how international human rights mechanisms can apply political pressure and draw attention to human rights violations related to climate change,¹³⁹ potentially laying the groundwork for more targeted legal action.

The second case resulting in an outcome is Teitiota v. New Zealand. ¹⁴⁰ The author sought to rely on the wider protection of the ICCPR: specifically, protection against involuntary return to his state of origin where this return would result in a violation of his right to life.¹⁴¹ In its views, the Human Rights Committee found that the timeline, of 10 to 15 years, before Kiribati would be uninhabitable allowed for ‘intervening acts’ to prevent the adverse effects of climate change from violating this right.¹⁴² Like the Supreme Court of New Zealand, it coupled its dismissal of the claim with some remarks that seem encouraging for future cases: it recognized that states could, in principle, incur international responsibility for returning individuals to states where they face life-threatening conditions caused by the impacts of climate change.¹⁴³ This, as observed by Committee member Laki, reflects ‘a significant step … toward the recognition of climate refugees, especially as regards non-refoulement obligations under human rights law and the ICCPR’.¹⁴⁴ Furthermore, it highlights the importance of international assistance to states that are adversely affected by climate change.¹⁴⁵ The decision therefore could serve as a stepping stone for more comprehensive remedy claims on behalf of those who have already suffered climate losses.¹⁴⁶ It also signals the need for judges and decision makers at the national level to consider climate change as a risk factor for the personal dignity of asylum seekers in their country of origin, as recognized by the Italian Court of Cassation in a recent judgment.¹⁴⁷

The third case, Billy et al. v. Australia, produced a significant normative breakthrough. While the majority did not establish a violation of the right to life,¹⁴⁸ the Committee unequivocally determined that Australia had violated the authors’ rights to family life and culture under the ICCPR, creating an obligation to provide ‘full reparation’ to the victims. The Committee also clarified the content of this obligation, stating that it involved, among other things, adequate compensation, needs assessments and meaningful consultations, measures necessary to secure the communities’ continued safe existence on their islands, monitoring the effectiveness of these measures, and measures of non-repetition.¹⁴⁹ The Committee requested Australia to report on the measures taken within 180 days.¹⁵⁰

This decision is a milestone. For the first time, an international human rights body established state responsibility for human rights violations resulting from climate change impacts, and directed the state to make ‘full reparations’ to the victims. As a caveat, it should be noted that the violation concerned Australia's failure to implement timely and adequate adaptation measures rather than its contributions to the causes of climate change as such. As Voigt has noted, this was a missed opportunity to clarify the content of states’ mitigation obligations in the light of the provisions of the Paris Agreement, including its long-term temperature goal.¹⁵¹ Clarification of these obligations may occur, however, through the advisory proceedings pending before the ICJ and the IACtHR. Significantly, these requests not only focus on state obligations to address immediate and future climate risks but also ask for elucidation of the legal consequences of past or ongoing conduct that has caused significant harm to the climate system and other parts of the environment. Consequently, the advisory opinions could serve as a stepping stone for loss and damage cases in which states are held responsible for the consequences of their failure to reduce GHG emissions over time.¹⁵²

One important question on which the advisory opinions could provide valuable guidance concerns the apportionment of responsibility for rectifying the harm caused by climate change.¹⁵³ International law itself provides limited guidance on this question, other than the general principle that a state's contribution to the injury affects how much it owes in terms of compensation.¹⁵⁴ None of the adjudicated cases in this study shines light on this issue. However, two of the pending domestic cases seek compensation for historical emissions¹⁵⁵ and the way in which the respective courts approach this claim could potentially inspire international claims for climate reparations, or influence the way in which courts and quasi-judicial bodies grapple with these claims.

On the whole, several factors signal the potential of international law and litigation to combat climate change and inspire jurisprudence. For example, a 2021 study shows that 29 out of 93 climate change cases featured arguments that relied on international obligations.¹⁵⁶ Thus, emerging case law highlights the important role of international human rights bodies in shaping international norms on climate justice and elucidating states’ obligations under international law.¹⁵⁷ At the same time, it should be recalled that the broader legal landscape for loss and damage is still rapidly evolving, and the litigation trends are not isolated incidents but part of a dynamic system of international climate governance and legal interpretation.¹⁵⁸ The decisions reached in courts, from national to international levels, can inform and influence the trajectory of diplomatic negotiations, and vice versa. The acknowledgement of states’ obligations towards climate-displaced persons in Teitiota v. New Zealand, for instance, may encourage states to discuss concrete mechanisms for their protection during climate talks. Similarly, the recognition of state responsibility in Billy et al. may put pressure on states to strengthen their commitments to mitigation and adaptation efforts. Conversely, the agreements reached in climate negotiations can shape the discourse and interpretation of climate-related rights within judicial settings. The recognition of loss and damage in the Paris Agreement, for instance, could influence future jurisprudence on reparations for climate change-related human rights violations.¹⁵⁹ In the light of the complexity of these dynamic interactions, there is an imperative for continued scholarly scrutiny, further illuminating the evolution of this legal frontier and assessing its normative and real-world impact.

4. CONCLUDING REMARKS

As the world grapples with the escalating consequences of climate change, rights-based climate litigation has emerged as a crucial avenue for those seeking remedies. This comprehensive analysis has unveiled that this litigation trend has indeed started to fulfil its promise of addressing loss and damage. The use of human rights arguments proves to be a critical component in this evolution. By adopting a rights-based perspective, loss and damage are reframed as a human rights issue, emphasizing the urgent need to safeguard climate-vulnerable populations and redress violations of their rights.¹⁶⁰ The human rights dimensions of these cases also assist in bridging the gap between domestic and international legal systems, fostering integrated legal arguments around redress for loss and damage and facilitating their replication.

At a more granular level, each of the cases provides valuable lessons regarding the kinds of evidence and argument that can substantiate rights-based loss and damage claims. This is true even for cases that were unsuccessful. For instance, the Baihua Caiga case in Ecuador initially made headlines for its innovative integration of the rights of nature, underlining the criticality of safeguarding ecosystems for their own intrinsic worth and their interconnectedness with human rights. Its dismissal for lack of evidence illustrates the challenges inherent in pursuing such novel legal pathways, particularly when jurisdiction-specific laws and regulations come into play. Still, the case presents a valuable lesson in leveraging domestic legal provisions to protect Indigenous lands and seek compensation for loss and damage, a strategy that is likely to find echoes in other jurisdictions. Other pioneering initiatives, like the Philippines Carbon Majors case, have provided important sites for learning on a range of technical issues, such as the presentation of scientific evidence and dealing with causation,¹⁶¹ contributing to the further development of future loss and damage cases. Again, while the specifics of these strategies might not be universally applicable, they contribute to a growing body of knowledge and experience that can inform the design and implementation of rights-based litigation strategies to pursue redress for loss and damage in different jurisdictions.

This process of learning is also about understanding and overcoming the significant challenges that persist for those bringing rights-based loss and damage claims. As seen above, establishing the value of loss and damage suffered, proving causality, attributing specific harm to polluters, and finding a suitable forum to hear the claim all present considerable hurdles.¹⁶²

Yet, these obstacles are not as insurmountable as they may appear. Reliance on probabilistic approaches to causation and advanced attribution science, for example, can help in overcoming obstacles related to causality and attribution.¹⁶³ Furthermore, courts can draw upon their experience in assessing damages for conventional claims and develop new methods for assessing various forms of capital, ecosystems, and human rights affected by climate impacts.¹⁶⁴ Creative remedies aimed at restoring victims’ rights can be designed, drawing upon a rich body of human rights jurisprudence on remedies for both individual and collective forms of harm.¹⁶⁵ The importance of the principle of CBDR-RC also becomes clear in this landscape. This principle, as highlighted in Urgenda, could potentially underpin the apportionment of responsibility for loss and damage in future cases.

Looking forward, the interaction between climate litigation and international negotiations is likely to become even more salient. As scholars have noted, the proliferation of climate lawsuits globally, coupled with escalating climatic impacts, will inevitably affect the dynamic between these dual paths to climate action.¹⁶⁶ Guiding this progression must be an unwavering adherence to a rights-based approach, rooted in principles of equity and fairness, and laser-focused on safeguarding the most vulnerable from the escalating ramifications of climate change.¹⁶⁷ Pending and future cases, including the advisory proceedings before the ICJ and IACtHR, could play a significant role in achieving this focus. By using their respective mandates effectively and providing meaningful redress for victims, courts and human rights bodies are guiding decision makers on the imperative of rights-based climate action, signalling that accountability and justice are fundamental in addressing the climate crisis and its consequences.¹⁶⁸ While rights-based climate litigation alone cannot reorder the globe,¹⁶⁹ it is providing vital steers in the direction of climate justice.