CHR-NI-2016-0001 Statement of Resource Person, Dr Margaretha Wewerinke-Singh 6 A. Cause of action: On what basis can a claim for climate-related damages be brought? Key to any climate compensation legislation is the identification of legal rights that can form the basis of a lawsuit for climate-related damages. 27 The Climate Compensation Act provides for lawsuits on the basis of the common law concept of “nuisance”. Nuisance is a common law tort (or delict), which is a recognized category of legal wrong for which a court will provide a remedy. 28 A “public nuisance” arises when there is an interference with the rights and interests of the public. In relation to climate change, the right in question is the public right to a healthy atmosphere. International human rights law and human rights protected under the Constitution of the Republic of the Philippines consolidate this right. Under the Model Climate Compensation Act, interference with the health of the global atmosphere is a nuisance, and an action may be brought where such interference causes harm within the country that has enacted the Act. Specifically, the Act provides that: “The alteration of the health and composition of the global atmosphere to a measurable degree and in a manner that causes or may cause harm in [country] violates the right [to a healthy global atmosphere] and is a significant contribution to Climate Change, and as such constitutes a public nuisance” (s. 4(2)). B. Jurisdiction: what is the basis for the court to hear a claim for climaterelated damages? In most cases, the question of where a tort takes place is straightforward, as both the action giving rise to the harm, and the actual harm, occur in close proximity. However, this is not the case with climate-related harm, where the cause and harm associated with the tort usually cross geographic boundaries—making the location of the tort “both ambiguous and diverse.”29 In relation to climate-related harm, it is therefore necessary to consider what basis a domestic court, such as a Filipino court, would have to hear a claim for damages arising from climate change. While there is nothing preventing the Philippines from simply declaring its jurisdiction over climate change (subject to constitutional restraints), that broad authority is unlikely to be recognized by other countries. To the extent that the Philippines is going to need help to enforce climate-related orders, it is therefore preferable to ground the jurisdiction on more a broadly recognized legal principles under what is known as “private international law.” Private international law—the body of rules used to resolve legal disputes between private individuals who cross international boundaries—thus forms the basis of the jurisdictional provisions of the Model Climate Compensation Act. 27 International Bar Association Climate Change Justice and Human Rights Task Force, Achieving Justice and Human Rights in an Era of Climate Disruption (International Bar Association 2014), 128: “identification of actionable rights available to individuals.” 28 A tort has been defined as: “Wrong ; injury; … In modern practice, tort is constantly used as an English word to denote a wrong or wrongful act, for which an action will lie, as distinguished from a contract. A tort is a legal wrong committed upon the person or property independent of contract”. http://thelawdictionary.org/tort/, accessed 1 December 2018. 29 M Keys, ‘Substance and procedure in multistate tort litigation’, (2010) 18(3) Torts Law Journal 205.