Washington International Law Journal


Aura Weinbaum


It is generally accepted within the scholarly international community that global climate change is occurring and is due at least in part to anthropogenic activity. Strategies to mitigate climate change harms and adapt to inevitable climate change-induced consequences are influencing legal, political, and human rights frameworks. Thus far, international litigation attempts to hold emitters accountable have been unsuccessful: Tuvalu’s threat to sue the United States and Australia at the International Court of Justice, and the Inuit’s petition to the Inter-American Commission on Human Rights were both hampered by procedural and substantive legal issues. Perhaps in response, the United Nations and a range of other actors have taken steps since 2005 to enhance the linkages between climate change and human rights as a way to augment the obligations of states to protect their citizens and enhance international cooperation in addressing climate change. While necessary in the grand scheme, this progress does not immediately create a remedy for some Small Island Developing States (“SIDS”), such as Tuvalu. This comment argues that tort and human rights-based litigation may not be the most effective approach for SIDS facing the dire consequences of climate change. Rather, SIDS may benefit from pursuing compensation based on unjust enrichment, focusing on benefits conferred on emitters rather than harms caused or rights violated. If successful, unjust enrichment litigation would allow these States to avoid the specific proximate cause, cause-in-fact, and sanction requirements associated with torts, and the legal obligation and enforcement problems associated with the process of developing and clarifying human rights law, while simultaneously securing necessary funding to implement adaptation strategies.

First Page