Reparation for Climate Change: The Successes and Limits of Litigation

Pranav Ganesan

Chapter 14: Interim Reflection

1.Introduction

Frustration with international climate negotiations as they relate to the redressal of climate injustice appears to be a common element in the preceding chapters. While climate litigation stands out to advocates of climate justice as a means to bridge the “accountability gap,” Suedi, Natarajan, Nordlander and Seck’s chapters call for caution in framing litigation as such. They identify different problems with litigation for climate reparations and present complicated pictures of what claimants can achieve through litigation.

Upon reading the four chapters in this section of the book, three questions came to my mind. They were as follows. (1) Why is litigation for climate reparations necessary when slow but incremental progress¹ is being made in the area of climate finance and other forms of support through negotiations within the framework of the international climate change regime? (2) Would adjudicating on climate reparations claims even be possible for a court, given the controversies surrounding the meaning and legal implications of the underlying norms? (3) Can we hope for courts to become sites where legal remedies (assuming responsibility or liability on the respondent’s part is found) are re-imagined? The focus of most of this chapter is on inter-state litigation, but other forms of litigation shall also be touched upon. In what follows, I will address each of the three questions in turn. The first question is meant to structure the discussion, whereas the second and third questions prompt evaluative responses. I would clarify at the outset, to not betray readers’ expectations, that given the breadth of the latter two questions, my response will offer an informed discussion, rather than a definitive “yes/no” position.

2.Inter-state Negotiations and Litigation for Climate Reparations

Suedi’s chapter discusses inter-state litigation for climate reparations. These would include the cessation of conduct capable of injuring other states and the environment, which is causally linked with global warming, and compensation to the affected states for harms already produced by climate change. She argues that the key hurdles in a contentious litigation campaign by an affected state are that of an international court’s jurisdiction to adjudicate a dispute about such reparations, the inability to calculate compensation because of questions surrounding historical responsibility, and the unlikelihood of international courts ordering the cessation of wrongful conduct alongside an authoritative statement on the reduction of greenhouse gas (GHG) emissions required from the responsible state. Still, she argues in favor of pursuing litigation as a strategic tool, believing in its ability to pressure target states to change their behavior and influence climate negotiations in a positive way.² Nordlander concurs with the view that inter-state litigation has limited chances of success, but then goes on to argue that its pursuit could be counter-productive, disrupting the (slow) momentum that negotiations for financing loss and damage has built up over the years. This is a profound risk, but one that needs to be assessed with a critical eye.

The decision of the Conference of Parties to the Paris Agreement on the establishment of the Fund for responding to Loss and Damage (Fund) maintains that support from both developed and developing country Parties shall be voluntary, with the difference that while the former are urged, the latter are encouraged to contribute,³ and the developed country Parties are invited to “take the lead to provide financial resources.”⁴ Nordlander remarks that “[a] key question is whether distributive justice will shape the Fund’s operation.” Given that several contours of the Fund are yet to be finalized, we need to wait and see whether distributive justice will indeed shape the Fund’s operation. But what about the Fund’s reason for being? While often purported to be a deal — S. 289 —on “compensating” those affected by climate harms,⁵ this characterization is incorrect. The consensus achieved under the UNFCCC framework on the issue of loss and damage thus far suggests that this pillar of climate governance is not about accountability or liability.⁶ The Global South has been persistently trying but failing to achieve consensus on norms in the international climate regime which would directly or indirectly frame loss and damage as an injury for which historically responsible actors must make some form of reparations.⁷ Funding for the costs of adaptation to the effects of climate change and response to loss and damage takes place within a governance framework which treats such flows as aid rather than reparations.⁸ While the resources of the Fund are purported to be allocated in a manner that is prioritarian,⁹ the fact that the funds are “volunteered” arguably reflects that the mechanism is a far cry from constituting a piece in the reparations puzzle. Developed country Parties can, at any point in time, completely stop their contributions without attracting legal consequences.

In the off chance that inter-state climate litigation results in a finding of state responsibility for wrongful conduct in relation to emission of GHGs, the injured state’s access to the Fund would not preclude the court or tribunal from recognizing their right to reparation (as a correlative of the responsible state’s obligation to make full reparation, under the law of state responsibility). Emphasizing the disconnect between how climate finance under the UNFCCC framework is understood, and what advocates of climate reparations have been calling for instead, allows us to appreciate the value that litigation at the inter-state level can truly serve. Inter-state litigation for climate reparations would not merely be about bridging the climate finance gap as it relates to loss and damage, but forcing a shift in the terms of the debate between the Global North and South.

3.Complexity of Adjudicating Climate Reparations

The principle of common but differentiated responsibility predominates the discourse on climate action. It recognizes that all states, small and big, developed and developing are in some ways responsible for causing the climate problem, and thus, they all must take action to mitigate the risks it poses and its effects. However, the individual measures to address or respond to climate change that each state must take as a matter of obligation must be varied. Its distinct avatar in the international climate change regime is worth noting, as it comes with the suffix of “respective capabilities”¹⁰ and the clause “in light of different national circumstances.”¹¹ The principle is cited as offering a legal basis for different arguments. The most prominent, albeit controversial one is that of developed countries’ historical responsibility for climate change impacts and consequent duty to assume different burdens: the burden of making up for the reduction in the global GHG emissions budget that is linked to the socio-economic development of developing countries; and the burden of supporting developing countries in adapting to climate change.¹² A common response to this type of argument is that responsibility cannot arise for conduct which only came to be recognized as blameworthy in the late 20th century (ie after the so called “critical date” when the risks posed by GHG emissions came to be known with some degree of certitude). In response, Gosseries argues that ignorance (and therefore non-blameworthiness) does indeed excuse moral responsibility for the direct consequences of the conduct, but it does not detract from the moral obligation to redistribute the correlative benefits of historical emissions, which industrialized countries continue to enjoy, even after the latter’s connection with climate change came to light.¹³ This — S. 291 —moral obligation to redistribute those benefits in order to compensate the victim, according to Gosseries, is based on transgenerational “free-riding.”¹⁴ And the responsibility of the historical emitter is a consequence of their failure to adhere to this obligation. So much for moral arguments, which should ideally inform the development of a fair international climate regime — what about historical responsibility in the legal sense of the term? International legal accountability for historical emissions hinges on whether such emissions were internationally wrongful acts at the time.¹⁵ Internationally wrongful acts entail state conduct in breach of an obligation under international law.¹⁶ Thus, “historical responsibility” in the legal sense does not imply that there exists an obligation on states to pay for climate harms attributable to historical emissions. However, international law does not rule out the relevance of historical emissions.¹⁷ It has been argued that international law requires states not to determine their share of mitigation efforts “based on models that privilege current and past high levels of emissions.”¹⁸ In other words, a state’s historical responsibility (not in the sense of responsibility for internationally wrongful acts) for GHG emissions is relevant for determining its “fair share” in climate mitigation which its conduct must correspond to as a matter of legal obligation.¹⁹

Given the interaction, demanding that B pay for all 50 bottles could be argued as unfair, as B surely would not have bought any wine, had she not been gifted the bills. However, under no circumstance does it seem just that B should get to keep the remaining 40 bottles, without paying anything to S. B should pay for those bottles if she wishes to keep them; see Axel Gosseries, “Historical Emissions and Free-Riding” (2004) 11 Ethical Perspectives 36, 39–42.

Reparations would follow for any injury caused by states’ failures to prevent the emission of GHGs from activities within their jurisdiction, that is in excess of this fair share.²⁰

In legal analysis, the fair share question²¹ and the related critical date question²² are quite controversial. This is clear from the different answers to these questions within state submissions to the ICJ concerning the climate change advisory opinion.²³ While denying that there is a critical date or that states ought to emit GHG only as much as their fair share of “the remaining budget” would be fallacious, any concrete proposal regarding these may be criticized as biased, arbitrary or impractical. Beyond these big questions, there are certainly concerns about the appropriate rate at which emissions reductions ought to be pursued. The choice of emissions pathways entails a certain temporal and spatial distribution of risks of harm to various categories of interests, and the determination of these risks as acceptable. While considerable work has gone into answering these by synthesizing relevant norms in the complex of abstract legal obligations and legal principles,²⁴ this debate continues. But importantly for our purposes, these questions need to be answered when determining reparable (versus non-reparable) climate change-related injury, injured (versus non-injured) states and individuals, and the duty-bearers who owe reparations. To exemplify the point using private litigation, the tort liability of the corporate actor for the harms attributable to their GHG emissions depends on questions about whether it is reasonable to find fault with the corporation’s failure to self-regulate (based on concerns about how their activities might contribute towards climate change) rather than finding fault at the level of the state’s failure to regulate their emissions, how to account for certain corporations’ conduct in lobbying against regulation of GHG emissions and manufacturing doubt,²⁵ as well as the responsibility of — S. 293 —those who contribute towards the demand for the corporation’s product. Without grappling with these cross-cutting questions about climate equity, courts cannot adjudicate on climate reparations in a way that is satisfactory to how climate justice advocates conceive them.

4.Courts as Sites of Re-imagination?

Nordlander helpfully classifies other forms of litigation besides inter-state litigation into the following categories: vertical national (individual versus territorial government), horizontal national (individual versus territorial corporation), diagonal transnational (individual versus non-territorial government) and oblique transnational (individual versus non-territorial corporation). The complexity surrounding the identification of substantive duties related to the emission of GHG, and possible liability for harms causally linked with those emissions, still applies in these cases.²⁶ Again, these forms of litigation may not adequately further global climate justice. Nordlander’s analysis highlights the contrast between what litigation for reparations means for different categories of litigants. For those located within the Global South, transnational litigation would primarily be about bridging the gap left by the lack of North to South support for responses to loss and damage. Against corporations, tort cases will always be attractive for climate claimants because of their compensatory nature and their ability to extract this compensation from a “perpetrator” of harm.²⁷ For vulnerable groups and “the south” within the Global North, litigation may be the only way (outside of seeking redressal through political means) to fund responses to climate-related harms due to the inaccessibility of the Fund. However, no case of private litigation seeking compensation for climate-related harms has resulted in a successful outcome for complainants.²⁸ Claimants may find that their prospects of successfully obtaining some form of remedy would be higher if they instead initiate a case — S. 294 —against their own government, challenging inadequacies in the legal framework on disaster response and resilience (or its implementation). And there might be limited value in this, since such cases end up obscuring their individual responsibilities towards the climate or fail to account for the victims of climate change who suffer risks that are far worse.²⁹

Reviewing litigation projects from a critical lens can expose the limitations of framing claims in certain ways, approaching certain fora, or choosing some but not other respondents to go after. However, all these choices are merely a product of the legal norms that litigants can draw upon. Scenario 7 contemplates an ICJ case brought by Peru against Brazil rather than a Global North state, for there is no Global North candidate (except the Netherlands as Suedi points out),³⁰ that has acceded to the ICJ’s jurisdiction to adjudicate such a dispute.

Ultimately, I am sympathetic to the view that law has, far from helping the most disadvantaged of the victims, been complicit in producing climate injustice (among other injustices).³¹ Indeed, these norms ignore overconsumption and enable shifting burdens onto groups who are marginalized or lacking in the socio-economic and political capacity to protect themselves. Is it naïve to hold out hope for costly but necessary change at a scale that is transformative? When describing international law’s illusory emancipatory potential, Tzanakopoulos refers to Audre Lorde’s famous aphorism: “[t]he master’s tools will never dismantle the master’s house.”³² International law is constituted by norms emanating from states’ “own free will.”³³ Jackson warned of the risk of mixing “norms of duty” and “norms of aspiration” within the same instrument,³⁴ and this is pertinent in the context of climate treaties. Regarding the Paris Agreement, Rajamani suggests that the primacy of “national determination” has arguably led to “drag” in its implementation, and “mismatch between the collective temperature goal, stated ambition, and real-world action.”³⁵ In a world where different states can hold different interpretations — S. 295 —of what international law requires them to do or refrain from doing, Tzanakopoulos argues that in the end, all interpretations are formally equal and:

No selection can be made among them until the States either agree (“peculiar organ”) or at least agree to delegate the political power to a third party, such as a court or tribunal. (…) The determinations remain equal until we reach that final instance. But, to paraphrase Althusser, “the lonely hour of the ‘last instance’ [may] never come.”³⁶

A cynical take on litigation for climate reparation would suggest that legal analysis undertaken by courts, should legal claims survive jurisdictional and admissibility hurdles, will be constrained by norms that privilege the privileged. Which “final instance” can the victims of climate-induced displacement — as Natarajan illustrates in her chapter — appeal to for the restitution of their previous conditions of life?³⁷ Even if victims who are privileged enough to apply to a “final instance” manage to succeed through creative legal efforts, whatever victory is achieved, if at all, seems to end up being incremental rather than transformative. Seck, however, holds out hope that legal constructs can be re-imagined from the point of view of the Differentially Situated Ecologically Embedded Relational Individual (DSEERI).³⁸ As an example of legal remedies, she refers to Mary Christina Wood’s proposal of “atmospheric recovery litigation,” a model that Wood argues is practicable in climate cases brought against carbon majors before US courts. Can courts truly be the sites where this sort of legal re-imagination can occur? Private litigation that seeks to obtain remedial awards for climate-related harm (understood broadly as harm linked with global warming, rather than environmental pollution from activities like fossil fuel extraction and production) is yet to bear fruit. Suedi and Natarajan both draw parallels and discuss the relationship between climate injustice and colonialism,³⁹ but do not suggest that any court would be able to reckon with this inter-relationship when adjudicating reparations claims. This is not to say that climate cases have not and will not produce outcomes which can — S. 296 —be described as landmark or historic, but rather to highlight that legal victories do not necessarily reflect outcomes that climate litigants truly desire. Nevertheless, and echoing Natarajan’s concluding remarks, I do believe that they can serve as sites where the meaning of “reparations” as is traditionally understood can be questioned, and truth of those suffering the compound injustice of colonialism and climate change can be amplified.⁴⁰