Winston Anderson | ‘Polluter pays’ – legal recourse for climate justice

In the early afternoon of October 28, 2025, Category 5 Hurricane Melissa made landfall in Jamaica. Like the biblical plagues unleashed in Egypt, the storm took lives. At least 45 people perished in or from the turbulence of the wind, rain, and surging waters.

Generational destruction was inflicted on public buildings and infrastructure, private homes, and other property. Current financial estimates place the devastation at around US$ 12.2 billion; a figure that cannot include the incommensurables of psychological pathologies and social dislocations.

HUMAN ACTIVITIES AND CLIMATE CHANGE

There are serious and respected people who deny that human activity causes climate change. I am not a scientist and this is therefore not the place to interrogate that issue. I am a lawyer and it therefore suffices, for present purposes, that the international legal community has, in recent years, resoundingly affirmed a causal connection between greenhouse gas emissions, climate change, and the formation of extreme weather systems.

To emphasise. Recent advisory opinions issued by the International Tribunal for the Law of the Sea, the International Court of Justice, and the Inter-American Court on Human Rights are in full agreement that emission of greenhouse gases by human activities causes global warming. The Inter-American Court stated that, “Science has demonstrated that human activities have influenced the global climate and that they have been primarily responsible for global warming since the mid-twentieth century.... some effects of climate change [are] extreme weather events...”.

Given the current legal consensus, one key issue remains. What is the most efficient way to vindicate the legal right to redress by affected states for damage caused by extreme weather systems? At least four pathways may be identified.

INTER-STATE ACTIONS

It is an article of faith that international law is an inter-state system and that legal actions for damage are brought by the affected state against the state causing the harm. As early as 1932, it was decided in the Trail Smelter Arbitration that it was the legal responsibility of states not to allow emissions into the atmosphere from their territories to cause harm in the territories of other states.

There are many problems with the inter-state approach. Finding a forum with jurisdiction to hear the case could be challenging. The United States and Canada agreed to binding arbitration in 1932 at a kinder and gentler time for international relations. Today, the picture has radically changed. States are very unlikely to agree to arbitration on settlement for damage caused by hurricanes. There is no international court with compulsory jurisdiction over climate injuries claims.

Furthermore, the advisory opinions of the international tribunals linking greenhouse gas emissions to climate change are just that. There is no guarantee that an international court would necessarily find that these advisory opinions represent binding international law so as to ground legal liability of states. Proving a causal link between the emission from the defendant state to the damage in the claimant state would present further challenges. And inter-state actions are notoriously expensive and slow. Judgments sometimes remain unsatisfied for many decades.

TRANSNATIONAL ACTIONS

It may be possible for claimants in an affected state to sue in the courts of the emitting state. This approach benefits from the certainty of using the domestic legal system of adjudication and enforcement and has been tried in several cases in Europe but with very limited success to date. Bringing a suit against the government of the state is likely a non-starter since the government would likely plead immunity or act of state. Moreover, suing the government would not necessarily be going after the source of the problem or making the actual polluter pay.

A suit against the corporate entity responsible for the emissions would not face the same hurdles as a suit against the government. But other obstacles would emerge. Caribbean litigants trying to sue multinational corporations in the home country of those companies have often been turned away from the judgment seat with the advice that they should sue in their own countries (forum conveniens). The country in which suit is brought would need to have a sound legislative basis supporting the claim. It is doubtful that traditional common law actions in the torts of nuisance or negligence would suffice. Again, acute issues of causation would arise. How is a claimant to prove that the greenhouse gas emissions of a Canadian company in Nigeria caused damage left by Category 4 Hurricane Beryl in Grenada and Saint Vincent and the Grenadines? It is upon this rock of causation that many of the attempts at transnational litigation in Europe have floundered.

COP FUNDS

In 2022, the Conference of Parties (COP) to the 2015 Paris Agreement on Climate Change decided on the establishment of the Fund for responding to Loss and Damage (FRLD). The purpose of the FRLD includes assisting developing countries which are particularly vulnerable to the adverse effects of climate change, including extreme weather events and slow onset events.

This approach bypasses many of the difficulties involved with litigation. It provides direct assistance to affected states without having to thread the needle of legal doctrines and procedures. But there are significant downsides.

As of April 2026, a total of US$822.06 million has been pledged to the FRLD. Unfortunately, the total contributions paid are far less than the pledges. At COP 30 in Brazil held in November 2025, the FRLD sanctioned the first call for funding requests for its start-up phase. Requests could be made up to US$20 million and had to be submitted within six months from 15 December 2025. Even if successful in its request, this is far short of what Jamaica needs to emerge from the over US$12 billion hole dug by Melissa. And crucially, accessing the FRLD presents as pleading rather than as legal entitlement.

ICIC FUND

A few months ago, I proposed the idea of the creation of an international fund for climate disasters. The International Climate Injuries Compensation (ICIC) Fund would be established by global treaty and comprise a legal entity, capable of suing and being sued directly in domestic courts. It would be funded, possibly through insurance arrangements, by corporations based on the percentage of their greenhouse gas emissions. Courts in the country in which the climate injury occurred would have competence to hear claims. A threshold level of emission for contribution to the ICIC Fund would need to be negotiated, as would other details not necessary to outline here.

Funds of this nature are not new. In the United States of America, at least two states have passed “superfund laws” with the aim to make fossil fuel companies financially responsible for the harm caused by climate change. A global precedent is offered by the International Oil Pollution Compensation (IOPC) Fund established by the IMO’s Civil Liability Convention 1992, operating in many Caribbean countries. The IOPC Fund provides financial compensation to victims of oil pollution damage, where compensation is not available from a shipowner’s insurance coverage. The Fund is resourced by contributions paid by entities that receive certain types of oil by sea transport. Courts of the country in which the pollution occurs have jurisdiction and the Fund can be sued directly by aggrieved persons.

The ICIC Fund would alleviate most of the problems identified in achieving climate justice while avoiding the worst features of international litigation. It is needed in our countries vulnerable to extreme weather systems and corresponding economic and financial dislocations. It may be assumed that an international community prepared to coalesce around the 2015 Paris Agreement should find it difficult to reject the establishment of a financial mechanism that implements the ‘Polluter Pays’ principle in regard to atmospheric pollution in similar ways as the principle has been implemented with regard to pollution of the seas. Dedicated leadership by our Caribbean policymakers is required to put that assumption to the test.

Justice Winston Anderson is the president of the Caribbean Court of Justice. Send feedback to columns@gleanerjm.com.