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Arpitha Kodiveri is a scholar of international justice and Assistant Professor of political science at Vassar College. She received her doctorate in law from the European University Institute as a Hans Kelsen Fellow and an LLM from UC Berkeley as a Fulbright-Nehru Fellow. Kodiveri's work focuses on the role of climate litigation in redressing claims of loss and damage among the front-line nations of the global South. She previously worked as an environmental lawyer supporting Adivasi and forest-dwelling communities in India.

For issue #65 of The Internationalist, Kodiveri discusses how climate change has disproportionately affected vulnerable communities and outlines three legal challenges faced by climate victims seeking redress: establishing climate accountability, deciding between compensation or reparations, and navigating accessible legal avenues.

A recent study reveals that human-induced climate change has made heatwaves in South Asia thirty times more likely. Heatwaves result in various losses and damages, ranging from loss of life to livelihood. However, it is the vulnerable and marginalised communities who unjustly bear the costs associated with remedying these climate harms. For example, families in rural Bangladesh spend up to 2 billion USD annually on repairing climate change damages and taking preventative measures. 

International climate law and negotiations have been slow in addressing the repercussions of climate change. While the island state of Vanuatu first raised this issue in 1991, it wasn't until 2022 that a fund for “loss and damage” caused by climate change was agreed upon at COP27. The fund will now be housed by the World Bank, which will also act as a trustee, but the nature of contributions to be made by high-emitting countries remains ambiguous. 

As an environmental lawyer who has directly supported vulnerable communities in the forested stretches of India, I often ponder what this means for families who have lost loved ones to heat-related illnesses or coastal communities losing their homes to rising sea levels. Will these climate victims ever have access to sufficient legal remedies? Such questions remain largely unanswered by existing domestic and international climate laws. Moreover, the lack of a legally defined term for "loss and damage" makes providing adequate legal remedies and solutions more challenging.

The Three Dilemmas 

The first legal hurdle faced by climate victims in their pursuit of legal remedies – particularly in recovering costs unfairly incurred due to climate harms – is establishing climate accountability. While climate law holds countries with large emissions responsible for financing vulnerable and developing states for the climate harms they experience, this attribution of responsibility has taken many years and continues to create obstacles in the development and implementation of international climate law. Moreover, corporate accountability for climate harm remains unaddressed. Currently, climate victims have no legal shield apart from approaching existing state or government entities for limited relief. For instance, the floods in Pakistan last year left many devastated, and climate victims remain dependent on the state to provide adequate compensation to rebuild their homes. 

The second legal dilemma revolves around whether climate victims should seek legal remedies in the form of compensation or reparations. Each route presents different legal opportunities and challenges. When claiming climate compensation, there is a need to identify and quantify specific climate harms that can be immediately addressed, often focusing on the loss of property or livelihood. Other losses and damages, such as cultural loss or land displacement, are often sidelined as their quantification remains difficult. The dilemma of accountability persists as climate victims must choose whether to claim compensation from large emitting states or fossil fuel corporations.

However, studies like the 2023 research published in One Earth, which quantified that 21 coal, oil and gas corporations owe $209 billion a year in climate reparations, carry the potential to clarify questions of accountability since they provide concrete data that climate victims can use in legal action.

If climate victims pursue the legal remedy of reparation – which considers remedying colonial extraction and occupation as essential aspects of climate justice – there are specific challenges that arise, including proving climate harm during a particular period. Reparations offer legal remedies that extend beyond monetary compensation, such as public apologies, and while addressing the historical nature of climate injustice makes reparations an appealing framework, they are legally more challenging. As argued by Dan Farber, as time passes, it becomes more difficult to trace damages, despite studies like the one mentioned above. 

The third and perhaps more significant dilemma faced by climate lawyers and climate victims is choosing accessible legal avenues and approaches.

Through my work in environmental law, I have learned that pursuing all available routes increases the chances of finding a possible legal solution. In the context of loss and damage, environmental lawyers will need to contribute to shaping the establishment of loss and damages funds in ways that the interest of climate victims is adequately represented. Though expensive and time-consuming, there is a need to harness litigation to hold corporations accountable for climate harm even as we continue to look for inexpensive strategies to approach courts. States must also ensure the just distribution of compensation to people affected by climate change domestically.

Despite these legal challenges, there have been attempts to represent interests of people affected by climate change. One such example is the Lliuya v RWE AG (2015) case where climate lawyers filed on behalf of Lliuya, a Peruvian farmer, against RWE, Germany’s largest electric company. The lawyers sought compensation from RWE for knowingly emitting GHG and contributing to the glacial flooding of Lake Palcacocha. While the case is currently on appeal in the Upper State Court, Oberlandesgericht Hamm, if won by Lliuya, could contribute towards a significant victory of climate victims over corporations. 

The legal implications surrounding climate-related loss and damage are complex and multifaceted, including the inequality in access to climate data and climate science. As parts of Asia continue to grapple with soaring temperatures and relentless heatwaves, solving them will be essential if vulnerable communities are to cope with the climate reality that surrounds them.

The Internationalist Archive