Why a radical legal landscape is needed to ensure climate justice

By Joy Hyvarinen

International law needs to develop to keep pace with climate change.

It is creating new legal challenges for countries and communities, including unavoidable climate change-related loss and damage.

The biggest challenge globally is to agree and design a fair and effective new climate change agreement, which will involve tackling issues that have never been tackled before.

Finding solutions should involve exploring new ideas and considering lessons from different areas of law. Transitional justice is one area that may provide lessons and ideas for climate change.

UN climate chief Figueres, Ban Ki Moon and UNEP chief Achim Steiner are under pressure to ensure a global emissions deal is agreed in 2015

Transitional justice refers to processes and mechanisms used in countries and societies that are trying to make a transition from violent conflict or large-scale human rights abuses to peace and reconciliation.

It includes criminal prosecutions, truth processes, reparations for victims and governance reforms.

There are great differences between most of the climate change-related challenges referred to here and the terrible situations faced by countries and communities that are trying to confront and move forward from conflict and violence, but experience and ideas from transitional justice could help develop responses to climate change, including at the global level.

There are also areas where transitional justice is directly relevant to climate change-related challenges.

Transitional justice is an evolving and imperfect field. Challenges and criticisms include transitional justice as the “winner’s justice” and tensions between criminal prosecutions and truth processes.

Making peace possible could mean inadequate punishments for some perpetrators. However, transitional justice has helped to address the most difficult situations societies can face and it has resulted in important new processes and mechanisms, such as Truth Commissions.

On the ground

Transitional justice can be directly relevant to climate-change related situations.

For example, Megan Bradley has pointed out that transitional justice can help refugees and displaced people. She notes that as climate change continues, growing numbers of people are expected to be displaced by increasingly severe natural disasters such as floods and droughts.

She highlights that this is likely to involve losses and wrongs that will need to be compensated and addressed through for example resettlement.

There may also be situations where communities suffer severe impacts from inappropriate climate mitigation or adaptation initiatives and where transitional justice approaches can help find a way forward.

Lessons from transitional justice may also include experience with sharing of collective reparations. Collective reparations involve reparations for groups of people, for example communities that have been victims of human rights violations.

This can involve tens of thousands of people.

Experience with allocation of collective reparations could provide lessons for benefit-sharing in the area of climate change. REDD-plus for example may involve payments to forest-dependent communities for actions that reduce deforestation or increase carbon in forests.

Sharing of adaptation assistance is another example, as is sharing of potential compensation for loss and damage caused by climate change.

Ideas at the global level

Some of the most interesting and most challenging thinking related to transitional justice could provide ideas for the global response to climate change.

If a state is responsible for a wrongful act – if it breaks international law – it may be required to make reparations.  Reparations include restitution (returning things to their earlier state), compensation (payment) and satisfaction (for example making a public apology).

Larry May of Vanderbilt University has proposed a worldwide no-fault insurance scheme to fund reparations for victims or war or mass atrocities. According to May’s proposal all states in the world – even ones that played no role in the war or mass atrocity – would have a duty to contribute to reparations for the victims.

It is a very radical, controversial proposal, but it contains powerful elements, in particular putting the needs of the victims first. Could similar ideas be relevant for addressing loss and damage caused by climate change?

Gabriella Blum and Natalie J. Lockwood have tested whether the arguments in support of May’s proposal are limited to war and specifically if the arguments could also support the creation of a general international legal duty to help victims of natural disasters and compensate their losses.

This brings the discussion close to climate change. Blum and Lockwood conclude that the arguments for May’s proposal could also support the creation of a duty to aid and compensate victims of natural disasters, and other causes of human suffering.

Building on this one could argue that there should be a general legal duty for all countries, regardless of fault, to help poor and vulnerable countries that suffer loss and damage from climate change.

It would put the needs of the vulnerable first, as May argues in the case of war and mass atrocities.

Recognition of such a new legal duty would be a considerable change compared to the approach of the UN Framework Convention on Climate Change (UNFCCC), which is based on recognition of developed countries’ historical responsibility for climate change.

It would raise many questions.

For example, Blum and Lockwood point out that an automatic compensation scheme for natural disasters could discourage states from investing in disaster prevention and preparedness, although they also recognize that it could create an incentive for richer countries to provide funding and other support for disaster prevention and preparedness in vulnerable countries.

Another question would be how to divide the obligation to contribute to a global scheme that helped countries that had suffered loss and damage from climate change. Perhaps fault could re-enter the discussion here, as contributions could for example be based on responsibility for climate change and ability to contribute.

May’s proposal goes far beyond the current state of international law and could be considered utopian, but it raises important legal and moral questions. Exploring them could contribute to shaping the new legal approaches that climate change calls for.

It is a radical and controversial proposal, but perhaps a successful global response to climate change will require radical and controversial ideas.

Joy Hyvarinen is Executive Director of the Foundation for International Environmental Law and Development (FIELD)

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