A Global South Perspective on Loss and Damage Litigation
In June 2024, delegates undertook two-week-long negotiations at the UNFCCC Bonn Climate Change Conference. These meetings concerned the modalities of the newly instituted Loss and Damage (L&D) Fund and the provision of financial assistance to developing countries.
Previously, the operationalization of the L&D Fund, pursuant to Article 8 of the Paris Agreement, was established at UNFCCC COP28. However, this achievement was the culmination of three decades of tense and slow-paced negotiations, featuring continuing deadlocks regarding the responsibility of developed countries to provide L&D funds to the developing world. Meanwhile, finding this diplomacy insufficient, a variety of stakeholders have tried to use litigations to seek fast-paced and binding results.
In this piece, we reflect on the future interactions between the L&D Fund and litigations regarding L&D. We argue that these two phenomena must be seen as having a synergistic relation, effectively benefitting the Global South. Before turning to this argument, we contextualise how a Third World Approaches to International Law (TWAIL) perspective supports the pursuit of L&D litigations in the first place, given their risk of affirming Western hegemony.
Taking Stock of L&D Developments
L&D refers to harm resulting from climate change that cannot be mitigated or to which affected communities cannot fully adapt. Although the L&D Fund is intended to assist the developing world, which is the most vulnerable to climate change impacts, contributions to the Fund remain entirely voluntary. At the recent Bonn Conference, delegates focused on formulating the ‘New Collective Quantified Goals’ on climate finance, which aim to raise trillions of dollars post-2025. Developing countries seized the opportunity to insist on the L&D Fund being included in this bracket, yet with continuing resistance from developed countries. Perhaps more progress may follow at the forthcoming COP29, but for now, it is clear that these slow negotiations confirm the impetus for alternative avenues to address L&D.
It is in this vein that litigants have tried to seek compensation and other binding remedies for climate change linked harm through foreign courts and international bodies. These cases constitute L&D litigations, defined by Tigre and Wewerinke-Singh as disputes that ‘challenge the particular emissions contributions of certain stakeholders to adverse climate change impacts, where claimants seek reparations for climate harm’. The idea is to pinpoint the liability of individual actors for their emission contributions furthering climate change. Even though climate change is a collectively caused phenomenon, this approach allows claimants to apportion a quantum of damages commensurate with the unique emission outputs of particular actors, such as Carbon Major corporations or States. We now turn to how developing country claimants have thus far pursued L&D litigations.
The Current Progress of L&D Litigations
Transnational litigations in the environmental context are generally on the rise, with claimants from developing countries seizing national courts of developed countries. The specific subtype of climate change L&D litigations, however, remain nascent. There are two ongoing cases of interest in this regard. In Asmania et al v Holcim, Indonesian fishermen impacted by sea-level rise approached Swiss courts against a multinational company (MNC), seeking compensation and emission reductions. In Lliuya v RWE, a Peruvian farmer similarly seized German courts with respect to glacial flooding threatening their town. The Judges, interestingly, performed an on-site inspection of the affected area in Peru.
In addition to foreign national courts, litigants have also approached international human rights courts and bodies. In Billy et al v Australia, the UN Human Rights Committee observed that Australia must provide mitigation, adaptation, as well as L&D reliefs to Torres Strait communities living on sinking islands. This was not, however, an L&D proceeding strictly speaking as it was not contingent on Australia’s own proportional responsibility for climate change. Rather, it focused on its human rights obligations without consideration of its contributions to sea-level rise.
By contrast, the Child Rights Committee in Sacchi v Argentina has at least accepted the possibility of deciding on the proportional responsibility of States for climate change harm. This includes the ‘extraterritorial’ application of human rights for harm caused by emissions under the State’s ‘effective control’. Presumably, this can enable L&D litigation, empowering litigants from developing countries to use international forums against developing countries as respondents.[In Agostinho v Portugal and 32 other States, the European Court of Human Rights (ECtHR) recently declined to follow this broad conception of extraterritorial jurisdiction. However, in its highly anticipated advisory opinion on climate change, the Inter-American Court of Human Rights (IACtHR) will likely follow the Sacchi model, as the latter was inspired by the IACtHR’s previous jurisprudence on transboundary environmental harm.]
The foregoing attempts to use developed country’s national courts for L&D, if successful, will have direct and binding enforcement. While the cases before UN treaty bodies are not binding, they still have persuasive force and set common benchmarks. Cases before regional courts like the ECtHR can indeed produce binding outcomes on developed countries, although their compliance is uneven and inconsistent across States parties. Yet despite these positives, are there inadvertent drawbacks in this strong reliance on Western courts, institutions, and actors?
The Risk of Western Hegemony in L&D Litigations
There is a trend of national courts of the West becoming the near-exclusive forums for climate change litigations. While the claimants are marginalised communities from developing and least developed countries, the litigations are formulated, strategized, and funded by Western donors and NGOs, including in the L&D context. Given this, there is a risk that Western dominance in well-intentioned L&D litigations could “reinscribe the north’s hegemonic position in the international order”. The effects of such hegemony would be manifold.
First, Western actors would exercise control over the shaping of the L&D narrative, often creating or reaffirming harmful rigid stereotypes of Global South victims, thus failing to respectfully centre the lived experiences of affected communities. This concern is not new, and has long been problematized in human rights discourse. It is indeed important to scrutinise each litigation on these metrics. But on the balance, just as with human rights generally, foreign stakeholders are better off having the L&D litigation avenue than not, as it offers them remedies and bargaining powers when other means, such as the political process, cannot.
Second, from a statist perspective, TWAIL-inspired observers could take issue with the imposition of Western legal standards in the Global South through L&D cases. Such an objection would emphasise the institutional implications of Western courts and regulators exercising ‘extraterritorial’ jurisdiction over Global South territories. Western policy-makers and judges imposing policy and legal judgments impacting Global Southern locales could be a form of neocolonialism, allegedly denying discretion to local institutions in developing countries. Indeed, the ECtHR has recently warned against imposing ECHR standards on non-State parties, emphasising its consent-based application (para 562). The previously discussed physical on-site visits by German judges in Peru were a particularly controversial example of the potential extraterritorial impact of foreign jurisdiction (although the Peruvian State consented to these inspections). Thus, in sum, L&D litigations might threaten the sovereignty of Global South States.
We, however, want to argue that L&D litigations benefit both Global South States and climate change affected stakeholders thereof. Beginning with the issue of extraterritorial jurisdiction, Chimni provides an insightful historical account of how that concept was used to deny ‘legal and policy space’ to the Global South, such as in the context of Empires imposing their will on colonies, often for capitalist gains. Thus, the potential problems with extraterritoriality are very real. However, Chimni cautions that the concept is not irredeemable. Rather, extraterritorial jurisdiction is helpful insofar as it supports the agency of the subaltern classes of the Global South. We believe that L&D litigations, in particular, do exactly that by providing opportunities for vulnerable developing country claimants to use the institutions of the West against itself for concrete action.
Sornarajah similarly argues that we must distinguish between extraterritorial jurisdiction which is offensive (the West intruding on the Global South) rather than defensive (here, developing country claimants using Western courts to seek L&D). The takeaway is that defensive uses of foreign institutions advance, rather than inhibit, the agency of Global South communities, helping restrain Western emissions. Moreover, L&D litigations may also support the interests of States of the Global South in restraining foreign actors such as MNCs, which are otherwise insulated from their national laws under investment and trade treaties. In this sense, L&D litigations reflect pragmatism, in that foreign courts are the best available tools to restrain powerful developed States and private respondents. Rather than impinging on the sovereignty of developing States, these litigations can become an indirect tool for their agendas.
Thus, L&D litigations hold the promise of benefitting both Global South States and stakeholders. But now that the L&D Fund has emerged, what remains to be gained from L&D litigations?
Synergy Between the UNFCCC Fund and L&D Litigations
While we have suggested that L&D litigations are a positive phenomenon for the Global South, it is important to acknowledge that piecemeal gains from individual claims cannot substitute the need for a permanent structural fund. Litigations, after all, can at most pronounce on the proportional responsibility of the respondent for the specific climate change harm in dispute, which will result in insignificant quantum of relief. In any case, L&D litigations are only accessible to a few stakeholders who are able to approach foreign courts and international bodies with support from Western donors and NGOs. In sum, making the L&D Fund robust remains a priority.
We believe that the most important contribution of L&D litigations is not practical remedies but principled affirmation. As Shams suggests, the international climate change regime is “polycentric”, involving interactions between multiple processes and actors. In the L&D context, developed and developing countries recursively debate whether the new UNFCCC Fund is a “liability” or “aid mechanism”. Liability would imply recognition of the developed world’s historical responsibility for climate change linked emissions, making the financial transfers mandatory rather than voluntary. Originally, L&D litigations probably arose because of a perceived dissatisfaction with the UNFCCC negotiations. However, the success of these litigations can now offer political pull to delegates from the Global South in insisting upon the responsibility and liability of Western States and actors. Judicial findings from the national courts of developed countries would make it harder for their executive delegates to oppose the former’s demand for stronger L&D financing. Therefore, a synergistic approach combining the benefits of the parallel pursuit of L&D negotiations and litigations is the best way forward for the Global South’s interests.
Conclusion
As COP29 fast approaches, the future of the L&D Fund will certainly be hotly debated again between developed and developing countries. The appropriate question for us is not whether fast-paced litigation is a useful substitute for these slow-paced UNFCCC negotiations regarding L&D. Rather, Global South delegates must find ways to seize the parallel developments in L&D litigations to the advancing structural reform in climate financing.
