Reparation for Climate Change: The Successes and Limits of Litigation

Usha Natarajan

Chapter 11: Climate Reparations

as Truth

1.Introduction

The last time there was this much carbon dioxide in the Earth’s atmosphere was three and a half million years ago, long predating the advent of the human species.¹ Climate change today is caused by injustice, with the lifestyles of the wealthy few underpinned by global warming and collapsing ecosystems across the world.² The richest 20 percent of people consume 80 percent of the world’s natural resources and generate over 90 percent of its pollution and waste.³ Most of the rich live in the Global North and most of the poor in the Global South.⁴ To provide one example, two states within the United States, Texas and New Jersey, with a combined population of 37 million, emit as much carbon dioxide as the 1200 million people in the 49 countries in sub-Saharan Africa.⁵

Disparities on such a scale are not happenstance, they are systemic, with laws and institutions playing a central role in structuring longstanding inequity by insulating the rich and powerful from the harmful consequences of their actions. As the impact of climate change is borne by others, there is no immediate incentive for the rich to change their behavior. The poor contribute very little to climate change but are on the frontlines of environmental harm because of their vulnerable geographic locations, lack of resources and regulatory capacity to protect themselves, ongoing extraction of their natural resources and labor to fuel an unequal global economy, and a systemic transfer of pollution from the rich to the poor.⁶ As laws and institutions structure and regulate this global climate apartheid,⁷ opportunities for litigation for climate reparations could potentially be exploited by the rich and powerful toward further accumulation, in a morbid echo of French reparations extracted from Haiti in the wake of Haiti’s hard-won independence from French colonialism and slavery.⁸

For those unfamiliar with the iniquitous history of reparations in Haiti, a brief retelling may help to contextualize contemporary concerns about climate reparations: in 1791, Dutty Boukman and Cécile Fatiman spurred a mass uprising of enslaved peoples across the French plantations of Saint-Dominique, the French part of the island of Hispaniola in the Caribbean Sea. They began a rebellion subsequently led by Toussaint L’Ouverture and after him Jean-Jacques Dessalines until, on New Year’s Day 1804, Dessalines declared independence from France and renamed their country Hayti (now Haiti) from the Indigenous Taíno word for land of mountains. The peoples of Haiti had achieved the first successful Third World revolution. This provoked concerted opposition from imperial and slave-owning powers such as France, England, Spain, and the newly independent United States.⁹ In 1825, France sent a fleet of warships to Haiti to demand 150 million francs in reparations for the loss of its richest colony and enslaved labor. This amount was six times — S. 231 —Haiti’s annual revenue and double what the United States had paid France in 1803 for the Louisiana Purchase. Haiti agreed to pay France in exchange for political recognition of its independence. To pay, Haiti borrowed from French banks and fell into a debt trap that persists today. From 1825 to 1947, Haiti paid off the debt with eighty percent of its wealth (21 billion US dollars), leaving Haiti with a legacy of economic disarray. Overall, Haitians ended up paying more than twice the value of the indemnity. Neither France nor Citibank, which bought the debt, have apologized for this plunder. In more than two centuries of independence, Haiti has been subject to relentless military and economic subjugation by France and the United States, with no end in sight. In 2003, Haiti called on France to pay 21 billion US dollars in reparations, and in the subsequent year the Haitian government was overthrown in a coup backed by France and the United States and replaced by a military junta that renounced Haiti’s demand for reparations.¹⁰

This précis serves to illustrate that calls for reparations can differ widely in nature, with the greedy, exploitative, and overentitled better placed to obtain reparations compared with the exploited, deserving, and needy. Hence, it is important to keep in mind the myriad multiplying forms that contemporary litigation for climate reparations could take, providing prospects for a wide panoply of actors and interests.¹¹ This chapter is interested in whether litigating for climate reparations can aid the cause of climate justice; that is to say, whether litigation can help those who are facing climate harms that they did not cause. Climate justice advocates tend to look beyond victory or defeat in a single case but rather litigate tactically if a particular case may be a helpful part of a broader advocacy strategy for systemic change. Part 2 begins with the crucial question of what reparations mean and who decides. Haiti’s history illustrates how reparations mean different things to different peoples. For those concerned with justice, the struggle to define reparations goes to the heart of the matter. To quote Mari Matsuda:

Reparations is not, then, equivalent to a standard legal judgment. It is the formal acknowledgment of historical wrong, the recognition of continuing injury, and the commitment to redress, looking always to victims for guidance.¹²

This quote aptly prefigures this chapter’s main argument that among other things reparations must tell the truth about mass suffering and its causes. Parts 3 and 4 outline some thoughts on the limits and possibilities offered by climate litigation for obtaining such reparations. Part 3 considers the challenges of accessing courts, as well as the difficulties of identifying, measuring, and providing adequate compensation for climate-related harms. Part 4 considers the extent to which courts may provide opportunities for truth telling for those usually silenced, and how such voices help reshape narratives of climate justice and contribute to transnational solidarity and movement building.

2.What are Climate Reparations?

Climate change does not play out on a level playing field. It is the inevitable byproduct of five centuries of European settler colonialism, genocide, slavery, apartheid, and plunder of labor and resources of the non-European world to fuel European accumulation and industrialization while erasing alternative development pathways. Neither Western Europe nor its vast settler colonies across the globe have made reparations for these enduring harms. It is against this background of legal and institutionalized unaccountability and irresponsibility that the issue of climate reparations has arisen across the Global South in recent decades. As Riley Case observes:

These two framings of reparations — for ecological and racial injustices — are not being discussed together in international legal scholarship. However, the climate reparations claim is rooted in the understanding that ecological harms arise from imperial relations that ground the broader appeal … these reparations claims are indissociable, which provides insights into meanings of reparations.¹³

As such, climate reparations do not merely demand a just redistribution of wealth.¹⁴ They are a demand for a redistribution of authority and knowledge production so that everyone will live in a future free from imperialism.¹⁵ The — S. 233 —goal of climate reparations is not only to look to the past to rectify oppressions that have already taken place but crucially to do so in a counterhegemonic manner that ensures a just future.¹⁶ For this reason, reparations demand much more than traditional legal remedies such as cessation, non-repetition, and compensation, entailing in addition to these some significant structural change.¹⁷

With this goal in mind, this chapter posits that reparation entails first and foremost the capacity to tell the truth. Thus, Matsuda asks for “the formal acknowledgment of historical wrong, the recognition of continuing injury, and the commitment to redress, looking always to victims for guidance.”¹⁸ Victims guide us to the truth, without which it is impossible to comprehend the nature and scope of harms done. Such comprehension is a necessary first step to ceasing harm and making redress.

As the wealthy and powerful have disproportionate influence over laws and institutions, they tend to use laws for efficient extraction of resources and labor, whilst obfuscating legal responsibility for harms and silencing victims. In contrast, reparations require legal systems that do not obfuscate facts, and legal discourses that do not render mass suffering unspeakable. Thus, a demand for reparations radically subverts and upends dominant legal systems, because such a demand dismantles the myth of legal equality and entails an acknowledgment of systemic legal silencing as a first step. For this reason, France and the United States responded with swift violence to Haiti’s reparations demand on 7 April 2003. When Haitian President Jean-Bertrand Aristide spoke his truth on the two hundredth anniversary of L’Ouverture’s death in a French prison, imperial nations heard not only a demand for 21 billion US dollars but foresaw a reckoning for the countless harms they wreak globally and thus hastened to depose Aristide.¹⁹

The truth is that rich continually rob the poor of what the rich are incapable of reinstating, and the poor have had to learn to live with irreparable loss. Even if law one day provides recompense for the injustices of colonialism, genocide, slavery, apartheid, and climate change, it can only be partial, which — S. 234 —does not render such compensation unnecessary. Achille Mbembe reminds us that to compensate does not mean to erase the wrong; it does not erase the need to remind, remember, and honor the truth.²⁰ And Kwame Appiah tells us that, at its heart, restitution is about offering to repair a relationship.²¹

In this deeper sense, reparations require ceding space to, lifting up, and allowing victims to speak their truth; and cultivating the capacity to listen to those systemically silenced within legal systems due to their species, gender, class, culture, race, sexuality, abilities, and other vectors of injustice. The subsequent parts of this chapter consider the challenges and opportunities that litigation offers for such truth-telling about climate change. Redressing deeply unequal relations with attentiveness and care is not just essential for climate reparations, it is necessary for stemming climate change. Injustice is the root cause of anthropogenic climate change, with the actions of the rich few placing human survival in unprecedented jeopardy. Climate change today provides humans with a daily reminder that truth is not only indispensable to the rule of law, it is also a condition for the survival of our world.²²

3.Some Challenges when Litigating for Climate Reparations

Looking to courts for climate reparations raises some fundamental contradictions. Courts are designed to maintain and preserve the legal system that created them, yet a demand for reparations asks courts to remedy the systemic injustice that courts are part of. This Part considers some ways in which this paradox manifests, from the difficulty of making climate litigation about climate justice, to the unjust outcomes of legal indeterminacy and epistemic homogeneity.

a.Climate Litigation for Climate Justice

Whether in international, regional, or domestic courts, the adjudication process skews toward creating legitimacy for the powerful but is not as easily claimed directly by subalterns in greatest need of protection. Courts inevitably — S. 235 —favor the middle classes as they can use justice systems most advantageously.²³ Access to judicial systems is often beyond the direct reach of grassroots politics, which then need elite legal professionals to act as intermediaries. Quick to master the discourse and the professional opportunities such litigation provides, such experts often contribute to undermining any radical or emancipatory truth telling potential by trimming subaltern narratives to fit within dominant legal parameters.²⁴ While challenging for subalterns to mobilize effectively, courts have frequently proved useful to imperial and undemocratic agendas.²⁵

As this chapter is concerned with climate justice, it considers to what extent climate litigation allows victims an opportunity to tell the truth about the causes and consequences of climate change. As the vast majority of people and places on the front lines of climate change are in the Global South, this chapter considers whether climate litigation has potential to redistribute power, knowledge, and wealth from the North to the South. Of the ten model scenarios presented at the beginning of this edited collection, such potential is least evident in situations where citizens of high emitting Northern states — who have themselves participated in and benefitted from their state’s high emissions — litigate against their own states for damages.

Scenarios 1 and 3 fall into this category. Scenario 1 draws on the Klima-Seniorinnen case, where a Swiss association of elderly women alleged before the European Court of Human Rights that Switzerland was partly responsible for violating their human rights due to adverse impacts of climate change stemming from Switzerland’s inadequate mitigation measures. The association sought reparations for existing and future harm. The Court did not provide reparations beyond covering the costs of the action, but importantly the Court held that Switzerland was obliged to mitigate and adapt to climate change.²⁶ Notably, a similar claim was made before the same Court by a group of Portuguese children against 33 European states including Portugal, which the Court ruled inadmissible on grounds of jurisdiction and non-exhaustion of domestic remedies.²⁷ In both these cases, the Court was uninterested in whether claimants themselves contributed to or benefited from their state’s emissions, — S. 236 —but from a climate justice point of view it may be worth considering whether children in the Global North bear less responsibility than adults in this regard. Scenario 3 contemplates a group of Italian farmers litigating against their state before a domestic court for human rights violations allegedly resulting from Italy’s lack of mitigation and adaptation to climate change and the resultant serious harm to farmers and farmlands. A group of Swiss farmers have since brought precisely such a case before a domestic administrative tribunal, which the farmers lost in the first instance due to lack of standing as they could not show a harm more intense than that experienced by the rest of the population.²⁸ However, their appeal is underway, relying among other things on the Klima-Seniorinnen case as well as the severity of harm experienced by the farming community, with this appeal pending at the time of writing.²⁹ Again, from a climate justice perspective, it may be worth considering to what extent European farmers have contributed to and benefited from their state’s emissions.

This chapter does not devalue the climate litigation that citizens and residents of the Global North undertake against their states of citizenship and residence. When litigants anywhere succeed in getting high emitting states to reduce greenhouse gas emissions and other global environmental harms, they contribute significantly to the global common good. However, this chapter argues that climate reparations demand much more than this. Reparations demand telling the truth about the racialized, gendered, cultural, and economic hierarchies that produced these harms so that redress and reparations dismantle these hierarchies instead of obfuscating, reproducing, and entrenching them. Litigation for such reparations would seek avenues for direct or indirect redistribution from North to South of not only financial, scientific, and technological resources but also power and agency. It is in this sense that environmental justice movements across the Global South use litigation, among other tactics, to disrupt and productively enhance global debates with their long-silenced multitude subaltern perspectives on what climate justice and reparations looks like.

As part of the Third World Approaches to International Law or TWAIL movement, I have written elsewhere about the terms Third World and Global South and the diverse ways our movement deploys these concepts.³⁰ For the — S. 237 —purposes of this chapter, suffice to say the Global South refers to the world outside Western Europe and its settler colonies. As such, it includes the South within the North,³¹ which are the Indigenous and Tribal nations that assert their sovereignty and self-determination despite longstanding European settler colonialism, conquest, and oppression. Of the ten model scenarios, the following six potentially raise North to South redistributive claims:

—Scenario 2 where Indigenous claimants litigate against their colonizers

in the Global North.

—Scenario 4 where the claimant asks (among other things) for the Com-

mittee on Economic, Social and Cultural Rights to establish a global loss and damage fund.

—Scenario 6 where a Small Island State makes a claim against the Flag State

before ITLOS for an oil tanker spill that harmed the maritime environment (contingent on the identities of the two states).

—Scenario 8 where four Indonesian claimants take a Swiss corporation to

a Swiss court for corporate activities in Indonesia causing climate loss and damage and requiring adaptation.

—Scenario 9 where its shareholders bring a Swiss civil action against Swiss

financial giant UBS for exposing shareholders to risk via carbon intensive investments (contingent on shareholder nationality).

—Scenario 10 where an Indigenous community from Norway makes a

claim against United States fossil majors in US courts under the US Alien Torts Act.

None of the ten model scenarios envision a situation where claims are made directly against a state or states in the Global North for the environmental damage they have wreaked across the Global South. Instead, Scenario 7 envisions litigation against Brazil, a state in the Global South, by Peru, another state in the Global South. Brazil possesses rainforests that are crucial carbon sinks, which it has allegedly failed to protect from deforestation and forest fires. Peru alleges transboundary harm as a result of deforestation and claims specially affected status. While a state that is specially affected by climate change is more likely to be in the Global South, such a claim could conceivably also be made by Northern states that are low-lying or Arctic or harmed in some other way. These types of claims are the most worrying from a climate — S. 238 —justice perspective given that they allocate both the blame and the burden of remedy squarely to the Global South; especially in a world where no such scenarios are envisioned against Northern states that are responsible for most global emissions, historic and contemporary.

While climate litigation from the North against the South is inherently problematic given grossly unequal carbon footprints, South–South litigation also has its climate justice challenges. For example, Scenario 5 envisions a claim by an Indigenous community against Mexico at the Inter-American Commission of Human Rights for failing to mitigate emissions and thereby harming the collective human rights of their community as well as future generations. At first glance, such a claim may seem subject to similar critique as the three aforementioned cases at the European Court of Human Rights. However, unlike Western Europe, most states in the Americas do not have high total or high per capita carbon footprints, with the notable exceptions of Canada, Trinidad and Tobago, and the United States. Moreover, many Indigenous communities across the Americas do not participate in and benefit from their state’s emissions to the same extent as non-Indigenous citizens. Rather, Indigenous communities suffer from an unequal access to natural resources and are disproportionately harmed by environmental change, and thus their claims are very much grounded in climate justice.

Unfortunately, such litigation has brought only limited benefits to victims, as they are unable to stem large scale Northern corporate extraction that profits from the violations of Indigenous rights. For instance, the comparable case of Inhabitants of La Oroya v Peru at the Inter-American Court of Human Rights ruled that Peru must provide diverse forms of reparations to the Indigenous community.³² It took twenty years of litigating for Indigenous communities to obtain the La Oroya judgment and corporate harm continued unabated during this time. In wake of this judgment, Peru faces legal and institutional difficulties in providing effective reparations given the dependency of the Peruvian economy on extractivism from the Global North.³³ In contrast, Northern corporate investors can subject Peru to an investor–state dispute settlement (ISDS) process that provides rapid and enforceable remedies if — S. 239 —Peru’s environmental regulations infringe on projected corporate profits.³⁴ From independence onwards, postcolonial states have been fighting a losing war against Northern investors on the battleground of investment law.³⁵

The Advisory Opinion sought by the UN General Assembly from the International Court of Justice foreshadows the potential for claims to be made directly against a state or states in the Global North for the environmental damage they have wreaked across the Global South.³⁶ This scenario should be kept in mind given its centrality to the climate justice concerns of this chapter. While climate reparations should potentially encompass a range of public and private actors, given the causes of the climate crisis past and present, the responsibility of rich states towards poor states remains central. After considering the obstacles and risks involved, Suedi ultimately advocates for such litigation and underscores the importance of state-based demands on the international level.³⁷

While South–North international efforts are paramount for climate justice, domestic litigation to hold private actors accountable for their contributions to climate change are also important given that just ninety companies are responsible for two-thirds of global emissions since the industrial revolution.³⁸ Dehm observes that,

based on cumulative emissions between 1988 and 2022, the 21 largest fossil fuel companies owe USD 5.4 trillion in reparations between 2025 and 2050, or USD 209 billion annually. The super-profits made by the fossil fuel industry between 2000 and 2019 could cover the costs of climate-induced economic losses in 55 of the most climate vulnerable countries nearly 60 times over.³⁹

When it comes to demanding such reparations in domestic courts, as Nordlander observes, there are legal and practical obstacles for litigants in poor states to access courts in rich states.⁴⁰ Scenarios 8 and 10 contemplate such action. Scenario 8 considers litigation by individuals in the Global South against Northern corporations in Northern courts. The two real life counterparts to this Scenario are, firstly, Luciano Lliuya v RWE AG, where a Peruvian farmer’s claims against the German corporation RWE were dismissed by a German court;⁴¹ and, secondly, Asmania et al v Holcim, where the claims of four Indonesians against Swiss corporation Holcim in a Swiss court are still pending.⁴² Scenario 10 considers claims by an Indigenous community in Norway against US corporations ExxonMobil and Chevron in US Courts under the Alien Torts Statute (ATS). The US Supreme Court in Jesner v Arab Bank curtailed corporate accountability of foreign corporations under the ATS. The case left room for ATS claims against US corporations but emphasized a high burden of proof and a requirement that the issue be of concern to the US.⁴³ The prospects of success in any such a case are further diminished by the return to the US Presidency of the rabidly anti-environmental Trump administration as well as its judicial appointees that constitute a majority in the US Supreme Court.

b.Legal Indeterminacy and Epistemic Homogeneity

If climate litigation is successfully launched in the cause of climate justice and truth-telling, such cases must then reckon with the limits of the legal concepts available to them with which to articulate their justice claims and speak their truths. Legal concepts that lack clarity or have a wide scope of indeterminacy leave some room for just solutions but tend to skew toward the powerful, who are best positioned to exploit legal imprecision. Some of the concepts involved in articulating a notion of climate loss and damage suffer from such fuzziness. I have written elsewhere about six assumptions underlying the legal notion of climate loss and damage that merit scrutiny: that climate change is a) identifiable, b) calculable, c) compensable, d) attributable; and that e) the concept of loss and damage for climate change may help deter irresponsible behavior, and

f)make a much-needed gesture towards fairness. Upon close examination, I concluded that all six assumptions reduce nature to its commodification and — S. 241 —exchange value, thus reproducing Western modern law’s harmful relationship with the natural environment. For similar reasons, there are risks that climate justice litigation may have unintended consequences, including that of potentially exacerbating climate change. These risks should be taken seriously because they echo existing patterns in international environmental law where, after five decades of sustained attention, the global environment has consistently deteriorated.⁴⁴

Without revisiting each of these six issues in depth, it may be helpful to outline some aspects pertinent to climate reparations litigation. In both the natural and the social sciences, several gaps persist when it comes to identifying climate loss and damage.⁴⁵ Moreover, loss is an experience that cannot be understood without nuance and sensitivity to the nature of people’s lives and the humility to allow those people to speak for themselves. What matters to societies and individuals shapes what they consider a loss. Loss gets its meaning through lived and place-based experience. Perspectives from human geography, psychology, philosophy, economics, and ecology reveal that loss is relational and dynamic as people make trade-offs between different value priorities.⁴⁶

Within my discipline of international law, accommodating diverse, changing, ambiguous, and contradictory understandings of loss poses a challenge because international law is wedded to a constructed universality. Modern international law has its origins in the works of sixteenth century European jurists, when the colonial encounter with ‘new worlds’ motivated European legal reasoning to encompass all peoples and places under its imperial gaze.⁴⁷ Since then, international laws and institutions have continued to serve largely as a vehicle for Eurocentric interests writ large.⁴⁸ For this reason, some scholars have argued that international law is incommensurable — S. 242 —with difference.⁴⁹ International law continuously justifies and dynamizes itself by the selective assertion of universal values, adopting a professed position of external objectivity that possesses the capacity to detect such values. This is then followed by the identification of those places and people that remain unaware of such values despite their putative universality, necessitating the creation of more international laws to enlighten them.⁵⁰ Making space for the diverse types of loss that are encompassed by demands for climate reparations poses a fundamental challenge for law and other western modern disciplines that operate in accordance with similar homogenizing logics.⁵¹ For courts, the question of identifying climate loss and damage usually arises early, because in many jurisdictions the risk or experience of direct harm is necessary to obtain legal standing before a court. In the climate context, jurisprudence and scholarship often focus on challenges of causality and attribution, rather than first interrogating their presuppositions about what constitutes a climate harm. Instead, if courts would begin with looking to victims to understand what constitutes a climate harm, then a broader range of cases would achieve standing, thereby creating more space for truth-telling that may in turn broaden judicial appreciations of causality and attribution.

Once a climate harm is identified, quantifying it poses further challenges. Attempts to calculate economic value usually involve assessing the services that nature provides to humans. For instance, in Scenario 6, where an oil tanker spill has harmed an island state’s maritime environment, restitutio in integrum is impossible so the island state demands from the tanker’s flag state financial reparation calculated based on ecosystem goods and services. However, with a view to not reproducing existing environmental problems, it would be wise to reflect on the harmful consequences of anthropocentrism and contemplate the implications for the non-human realm as well. Even if a court confines itself to human harms, it is not possible to fully understand climate impacts for humans without understanding the consequences for nature as a whole. Human life is inextricably intertwined with all other life, and calculating loss from the human standpoint alone has proven shortsighted and inaccurate. Admittedly, calculating value from the point of view of nature — S. 243 —holistically may prove to be insurmountably complex even for scientific experts and environmental economists, let alone for judges.⁵²

Quantifying losses from climate change is not only difficult, it augments the longstanding divorce of economy from ecology. Even if such an assessment can be undertaken, should we be quantifying the conditions for life on earth, for the survival of species, for future generations, for happiness, and all the innumerable “services” that a stable climate enables? Assigning monetary value may lead to such an evaluation gradually obscuring and superseding all the other ways in which we appreciate nature, reducing nature to no more than a natural resource and a service provider. Such perceptions of nature have already played their role in producing climate change and other environmental harms. Solutions that involve more thoroughly commodifying nature, and more effectively capturing it within the limitless exploitation of globalized capitalism, create more problems than they solve.⁵³

Beyond the loss of a healthy environment, climate change produces many other types of harm that are also incalculable. Hence, the contemporary loss and damage debate in the context of climate change increasingly engages with non-economic loss. There is broad acknowledgement that it is at worst unethical, and at best distasteful, to assign monetary value to the loss of life, country, family, home, land, livelihood, tradition, culture, and future. Yet, litigating to compensate for such types of damage inevitably requires engaging in this difficult task. While similar challenges have been surmounted in domestic tort law, the logic applicable to domestic tort law may be misleading when applied internationally in the context of climate change because the types of loss and damage are different in scope and scale to an extent incomparable in human experience.

If a court nevertheless determines such calculation to be a worthwhile endeavor, who decides what counts and how to count it? People value and count different things in different ways⁵⁴ and, as previously discussed, law is a discipline that has had difficulty valuing a diversity of worldviews.⁵⁵ For example, Scenario 2 draws inspiration from the Billy et al v Australia complaint made by Indigenous Torres Strait Islanders to the UN Human Rights Committee that Australia violated the Islanders’ human rights under the International Covenant on Civil and Political Rights, including their right to — S. 244 —culture.⁵⁶ In their culture, maintaining ancestral graveyards and visiting and communicating with deceased relatives is a sacred and formative part of daily life and ritual. Amid a long list of harms, increased flooding as a result of climate change has not only destroyed their graveyards, but has left ancestral human remains scattered across their islands, creating horrific trauma across the community. While the Committee asked Australia to compensate through meaningful consultation to assess community needs in the present and future, it is not easy to envision adequate redress for such painful ordeals.

In cases where loss and damage are at an unprecedented scale, another challenge when it comes to litigating for adequate compensation is the segregation of environmental concerns from other aspects of public and private law. Disciplinary fragmentation predetermines legal priorities and the most favorable grounds for bringing a case. Such fragmentation prevents humane and orderly responses to climate change. Turning for example to the issue that provokes the greatest panic among rich states, it is estimated that hundreds of millions of people are in the process of being displaced across the Global South because of climate change.⁵⁷ International law currently addresses population movement in such shortsighted ways that it cannot conceive of a shift in the planet’s habitable zones. Refugee law provides international protection only for a tiny category of people who face specific extreme forms of discrimination (0.43 per cent of the global population has refugee status).⁵⁸ Everyone else crossing an international border is dependent on the discretion of host states for permission to remain. Such a legal framework obfuscates the mass protracted displacement habitually produced by dominant development patterns so systemically destructive that they foment conflict, insecurity, inequality, drought, famine, desertification, environmental toxicity, and of course climate change.⁵⁹ Yet attempts to provide redress through international environmental law for those displaced by climate change, including extreme cases where entire sovereign territories are submerging, have been evaded by rich states.⁶⁰ Attempts to provide redress through international laws for — S. 245 —asylum and migration are if anything even less promising.⁶¹ As international laws are disproportionately shaped by those causing climate change, they are reluctant to contemplate even monetary compensation for climate loss and damage, let alone more adequate and sustainable forms of recompense.

Yet, historically, many species including humans survived climate change by moving. That is to say, species adjusted to the shifting of their habitable zones by moving along with them. Today, we face climate change on a greater scale than humans have encountered in the past. But our world is now partitioned into sovereign territories with controlled borders, and rich states are strengthening these controls, so people cannot move easily. How can one compensate for the loss of homelands, especially in extreme cases where entire homelands are lost to rising seas? According to the Intergovernmental Panel for Climate Change, the Bahamas for instance will be completely submerged by 2070. In legal terms, how can a state’s sovereignty and self-determination be maintained or restored when its territory is entirely lost due to the wrongful acts of other states? Adequate recompense for such profound and total loss is impossible. Certainly, monetary compensation alone is inadequate, because what is needed is another home. One that is welcoming and that provides a renewed sense of safety, belonging and significance — a real home where one is not treated as an interloper or charity case. Beyond providing asylum, states responsible for climate change should cede territory to these ends to ensure the restoration of sovereignty and self-determination.⁶² In a world where the United Kingdom felt legally capable of handing over a significant portion of the trust territory of Palestine to European Jews to form the state of Israel as compensation for harms inflicted by Europeans, it is neither unrealistic nor unprecedented to demand that rich states instead cede parts of their own territory to recompense those whom they have harmed. If Scenario 7 can envision climate reparations from a state in the Global South for transboundary harm from deforestation, we can envisage the same laws of state responsibility as providing the foundation for a broader range of South to North legal demands to hold the North accountable for its irresponsibility on a planetary scale.

While it is not always straightforward to identify, quantify, and provide adequate compensation for climate harms, climate litigation may still be worthwhile if it promotes greater responsibility, fairness, and justice amid some individuals and communities. But reparations demands that rely wholly on economic valuation and financial compensation may merely allow the rich to further profit from their affluence. After all, the fossil fuel industry extracts rents that exceed its expenditure several hundredfold. For those who can afford to pay for the damaging consequences of their excesses, fines are no deterrent to further irresponsibility. For instance, Scenarios 8 and 10 envision reparation claims by individuals and communities in the Global South against Northern corporations. Whilst these cases are unlikely to succeed, even in the best-case scenario of victory, large corporations are unlikely to be deterred from continuing harm. Remedies that seem to apply to everyone equally but are in fact radically unequal in their impact are unlikely to produce just outcomes in the long run. Indeed, as Anatole France famously observed, such laws have long helped institutionalize and maintain unequal power relations.⁶³

When it comes to climate litigation, there is overreliance on economic valuation over other types of value. Even when other types of value are identified and acknowledged in climate debates — ecological, spiritual, cultural, and familial values, notions of fairness, justice, responsibility, deterrence, and so on — the default tendency in courts is to translate them ultimately into economic terms. Given that the prioritization of economic growth above all else has created environmental problems such as climate change, pinning our hopes on the same type of valuation for redress may be in vain. The futility of this logic is appreciated by many Tribal and Indigenous communities. A tribal elder from the Bad River Band of Lake Superior Chippewa Indians⁶⁴ observed that trying to evaluate their environmental resources or wild rice in dollars and cents is not a legitimate conversation, “because it concerns a lot more: our culture, our lifestyle, our spirituality. So, it’s priceless. We can’t put a price on it. We won’t. It’s not for sale.”⁶⁵ That is to say, nature cannot be encompassed within the rubric of exchange value. Thus, it presents fundamental conceptual — S. 247 —and practical challenges to the notion of climate reparations through conventional forms of litigation. For courts, delivering meaningful climate reparations entails not only making space for diverse understandings of value but also for learning from diverse legal traditions.

4.Litigation Opportunities for Climate Justice and Reparations

While there are several ethical, conceptual, legal, and practical challenges when it comes to litigating for climate reparations, there are also opportunities. As Linnéa Nordlander points out, the inadequacies of various climate funds (existing and planned) have rendered litigation a useful alternative forum for articulating redistributive demands.⁶⁶ Additionally, Julia Dehm makes a compelling argument for lawsuits against fossil fuel companies that intentionally concealed the dangers of their products and created doubt about climate science. Dehm predicts the proliferation of such suits, observing that “[a]ccountability for these targeted misinformation and lobbying campaign [sic] is an essential element of corporate climate accountability.”⁶⁷

As aforementioned, litigation tends to favor the powerful, but the ambiguity of law can sometimes work in favor of the oppressed and create momentous change that goes beyond the case at hand and productively informs broader societal, legal, and policy debates. Keeping in mind the constraints of mainstream legal discourse, litigation provides some opportunity — however limited — for claimants to tell their story. As discussed in Part 3, there are considerable barriers to climate justice claimants telling their stories in their own words and in their own languages. Nevertheless, at times they have managed to contribute to and shape the extant discourse in new and imaginative ways. Whether through establishing legal standing for future generations in the Philippines in 1993,⁶⁸ or legal standing for nature in Colombia, India and New Zealand over the last decade,⁶⁹ litigation has helped reveal the limits of traditional — S. 248 —legal remedies and has pushed courts to reevaluate the capacity of conventional legal concepts to provide justice. With this potential in mind, environmental justice movements litigate tactically with deep attentiveness to knowledge production, especially narratives — what stories are told by whom, when, and why — with a dedication to using the courtroom to tell better stories to address intergenerational and intragenerational equity concerns.

It is undeniable that environmental law — international and domestic, legislative and judicial — has thus far been unable to stem ecological catastrophe. Indeed, in many ways, environmental laws have contributed to the problems they claim to solve.⁷⁰ Nevertheless, the courtroom remains a theater of immense symbolic power. When climate justice cases are won but not enforced, or even when such cases are lost, all is not lost. For those who can get there, the courtroom provides an opportunity to be heard, not only by judges but to make suffering and injustice visible to the public at large and to make a public appeal through the considerable media attention that such cases command. Lawyers may enjoy tortuous debates on the intricacies of standing, causality, and attribution, but an ordinary person anywhere in the world more readily understands the general principles of law shared by all nations: Those who cause the harm should make the restitution and they should not repeat the harm.⁷¹

It is for this reason that courts continue to be a time-honored forum for Third World struggles. Not because they provide us with justice — this rarely happens — but because for a moment they amplify the mass suffering of the peoples of the Global South that is habitually ignored, silenced, or rendered unspeakable. Mahatma Gandhi is often quoted as saying, “there is a higher court than the courts of justice and that is the court of conscience. It supersedes all other courts.”⁷² As a legal practitioner and scholar, Gandhi had a keen appreciation of the courtroom as spectacle. His praxis of nonviolent civil disobedience entailed among other things repeated arrest and imprisonment. Gandhi used his time in the dock to amplify the injustices of British colonialism, using the attendant domestic and foreign press to appeal to ‘the court of conscience’ and thereby cultivate an Indian independence movement so large that it was impossible to ignore.

The tactical gains achieved by Palestine at the International Court of Justice over the years, against devastating odds, testify to how courts continue to be used effectively for anticolonial movement building.⁷³ In the face of Israel’s longstanding and ongoing occupation, settler colonialism, genocide, and apartheid in Palestine, it may seem futile to point to the ICJ’s Wall Advisory Opinion or the ICJ’s provisional measures in the South Africa v Israel Genocide Case as instances of success. Nevertheless, both cases not only significantly increased public awareness of the injustices long borne by the Palestinian people, but they also contributed to exponential growth of Palestine solidarity movements including the Boycott, Divest, and Sanctions movement.

Importantly, the Global South’s demand for climate reparations is more than an anti-colonial and anti-imperial stance. It is an assertion that there are ways of being in this world that are not inescapably wedded to extractivism, racism, capitalism, patriarchy, and diverse intertwined evils that have inevitably produced ecological catastrophe. Riley Case observes that the liberatory visions of the Global South are not solely in response to imperialism, but are inspired by “self-assured traditions of abolition, independence, Pan-Africanism, and regional solidarity.”⁷⁴ To the extent that litigation can draw on these types of local traditions, perhaps case law and the common law can propagate alternatives to globalized capitalism and its limitless accumulation:

Reparations are foremost a horizon of transformation away from accumulative ways of life that spread from Europe to the world, structuring the present reality. “Reparations” also refers to immediate justices that meet the demands of those who are harmed, because this prefigures the horizon of transformation by disrupting imperialism. These qualities dispel racializing critiques from the First World that reparations are irrational, or constitute politics separate from law. Reparations can enact legal relations that are meaningful to those “on the bottom,” and emancipatory for everyone, when communities and social movements define them.⁷⁵

Today, adequate responses to climate change demand more than financial compensation, technological transfer, and other schemes that allow the rich to pay to keep emitting, and to profit from their own destructiveness via the socalled green economy. Climate change exacerbates existing vectors of injustice — S. 250 —but more than that it reveals shaky disciplinary foundations built on false legal assumptions about nature.⁷⁶ Modern western law has not only destroyed nature but has done so in a manner that makes sustainable alternatives difficult to imagine and articulate. We need to resurrect more accurate and healthy understandings of the environment and law’s relationship to it. When it comes to international law, more than ever it would benefit from becoming genuinely international, ceding space to multiple worldviews so that more sustainable and equitable ways of living together can emerge.⁷⁷

To conclude where I began with the case of Haiti, Haitians have long demanded reparations for slavery and colonization from France, including restitution of the independence ransom. Haiti is also one of the countries most harmed by climate change, despite neither contributing significantly to nor economically benefiting from greenhouse gas emissions. It is vulnerable to flooding, drought, hurricanes, other extreme weather, as well as sea level rise, all of which cause serious harm to human life and health, agricultural production and livelihoods, and to the functioning of terrestrial and marine ecosystems. As one of the poorest countries in the world, Haiti suffers these harms not only due to its location in the Caribbean, but because of its history of colonialism and slavery and the persistence of racist exploitation today.⁷⁸ Thus, a Haitian claim for climate reparations is fundamentally interconnected with its existing demands for reparations for colonialism, slavery, and ongoing racial injustice. This chapter argues that climate reparations entail telling the truths about the causes and consequences of climate change by looking to victims for guidance. In Haiti and elsewhere, victims of climate change consistently understand climate reparations as interlinked with social justice and self-empowerment. So, what does success look like when litigating for climate reparations? Cessation of harm, non-repetition, just compensation, certainly; but first and foremost, the ability to tell the truth amid legal systems designed to silence it.