1. INTRODUCTION
The notion that the effects of anthropogenic climate change impact upon human migration or displacement is not new. It made an appearance in the Intergovernmental Panel on Climate Change's (IPCC) First Assessment Report in the early 1990sFootnote 1 and has gained traction in recent years in research and policy circles, as well as taking hold in media representations and the public imagination, often when considering ominous consequences of climate change.Footnote 2 Arguably, it is regularly construed as the ultimate signifier of the actual or potential ill effects of climate change.Footnote 3 Those directly affected, or those who otherwise take an interest, also construe it as one of the central injustices of climate change.Footnote 4 Fundamentally, the preamble to the 2015 Paris Agreement now enshrines in an international instrument the idea that matters relating to justice are linked to addressing climate change.Footnote 5 Beyond this, justice matters concerning those who have or want to move on account of climate change more specifically are regularly noted. For example, Emele Duituturaga, Executive Director of the Pacific Islands Association of Non-Governmental Organisations (PIANGO), states:
Many of the situations we find ourselves in, here in the Pacific, are not caused by us. We continue to ask, ‘Where is the justice?’ Those of us who are least responsible, continue to bear the brunt … . We hope that there will be an openness and an acceptance that climate-induced migration is one that the world community has to be responsible for.Footnote 6
Campaign group 350.org equates climate justice with migrant justice in arguing that ‘[w]e can't claim to fight for climate justice if we turn away climate refugees after the storms are over and the droughts have ended’.Footnote 7 Also, according to ‘Climate Justice’ (a position paper by the Mary Robinson Foundation), actions that seek to address those displaced or at risk of displacement, in the climate change context, must be founded on considerations of justice and, ultimately, in a Climate Justice Framework for Action.Footnote 8
Justice has no singular meaning or application. Terri Nardin has noted that ‘[a]rguing about justice [should] force one to articulate and clarify the standards on which one's judgements are based’.Footnote 9 This article focuses on one important justice angle – namely, corrective justice. Focusing on this angle is important. Climate change and its effects are increasingly referred to in existential terms, as either amounting to a ‘climate crisis’ or a ‘climate emergency’.Footnote 10 This points to a growing understanding among many that global warming generates dire effects, that it generates harm and wrongs, the prevention as well as rectification of which is conceived of as increasingly necessary, even if uncertain.Footnote 11 This article focuses on one area of apparent wrongdoing and harm: the harm and wrongs encountered by those who face displacement connected with the effects of climate change, many of whom vigorously highlight the injustices involved and have come to pursue avenues for redress and rectification. The article seeks to contribute to ongoing debates about climate justice,Footnote 12 by highlighting that corrective justice can be about more than seeking wrongdoers or apportioning fault, with a focus on the very act of rectification instead being a valuable alternative. It also seeks to contribute to ongoing debates about those displaced in the context of climate change, by moving the debate away from the realm of shelter, refuge and protectionFootnote 13 and into the realm of justice and correction for apparent wrongs.
The article proceeds as follows. It first charts briefly how climate change is connected with human displacement and how this, in turn, is connected with injustice. It then explains in greater detail what corrective justice is, reviewing its scope, aims and possibilities, and highlighting two distinct schools of thought on the issue. The article continues by examining the harm involved in climate change-related displacement, identifying the culprits, as well as discussing opportunities (or the lack thereof) for the rectification or reversal of harm. The final section collates and discusses recent legal and policy developments, at both the domestic and global levels, which incorporate a corrective justice approach to addressing migration and displacement in the context of climate change.
2. CLIMATE CHANGE, PEOPLE ON THE MOVE, AND (IN)JUSTICE
This article takes as established that human activities, particularly those involving the release of greenhouse gas (GHG) emissions, contribute dramatically to anthropogenic climate change and its associated consequences in both the natural and human world.Footnote 14 Worth highlighting is a 2018 IPCC report which notes particular populations at greater risk of experiencing the adverse consequences of climate change. These include ‘disadvantaged and vulnerable populations, some indigenous peoples, and local communities dependent on agricultural or coastal livelihoods (high confidence)’.Footnote 15 Some regions, too, are more susceptible than others; these include drylands, low-lying islands, the Arctic, and small island developing states.Footnote 16 The woes of climate change, therefore, are endured unequally.
More directly relevant to this article are the links between climate change, its effects, and people on the move. These links have been well rehearsed elsewhere.Footnote 17 This article highlights just one important dichotomy in this context, namely, that climate change has the capacity to play a role both in displacement and entrapment, with at least some similar consequences. Firstly, there is indeed little doubt that climatic change is connected with people on the move. Particularly where rapid climatic events, such as sudden extreme weather events, are concerned, a case can be made that anthropogenic climate change and its effects are a contributing force in the displacement of people. The IPCC in its Fifth Assessment Report collates the evidence of how extreme weather and climatic events are changing, both quantitatively and qualitatively. It notes, for example, that heatwaves are now twice as likely to occur, and strong precipitation events with a risk of flooding are also occurring more regularly.Footnote 18 The extreme consequences of such events include increased human mortality risks.Footnote 19 Such events are also strongly associated with displacement. As the IPCC highlights, ‘[a]n increasing … intensity of extreme weather events due to climate change will lead directly to the risk of increased levels of displacement’.Footnote 20 The Internal Displacement Monitoring Centre records between 17 and 25 million persons newly displaced annually around the globe by natural disasters for the five years to 2018, the majority of which were caused by weather-related events.Footnote 21 The likelihood of being displaced by a natural disaster is now 60% greater than was the case four decades ago.Footnote 22 The temporal aspect of this form of displacement is also distinctive; it is often temporary (sometimes quite short-term) rather than permanent.Footnote 23 Slow, incremental or long-term changes stemming from anthropogenic climate change – for example, drought or sea-level rise – also impact upon how, where, or how often people move. Personal choice to move away (or not) is more likely to be a consideration where change is slower to materialize, alongside a host of other factors, which may include existing migration channels or trends, cultural ties, including attachments to ecosystems, financial and other resources, and so on.Footnote 24 That said, slower but long-term impacts reduce the possibility of an eventual return, especially where natural and human support systems have degraded substantially or irreversibly. Moreover, it is important to remember that, irrespective of which climate-driven phenomenon a person responds to, whether short- or long-term, their exposure to risk in a destination area may not be diminished, much as this may have been a motivating factor for departing.Footnote 25
Conversely, climate change has also regularly been associated with so-called ‘trapped’ populations. The term was noted in a 2011 report published by the United Kingdom (UK) Government Office for Science, which examined linkages between human migration and global environmental change.Footnote 26 The report states that ‘in the decades ahead, millions of people will be unable to move away from locations in which they are extremely vulnerable to environmental change’, not least on account of reduced access to the resources required to move.Footnote 27 Hence, climatic change may not only be implicated in forcing people to move but also in preventing them from moving elsewhere, even though it is necessary, or even vital, to do so. Richard Black and co-authors note how this entrapment is linked inextricably to factors such as economic and social capital, available migration channels, and concern over one's possessions in the place departed.Footnote 28 Richard Black and Michael Collyer note furthermore that ‘[d]istinguishing between those who choose to stay and those who are forced to stay is essential [for] the notion of trapped populations’.Footnote 29 The latter is best conceptualized as experiencing involuntary or forced immobility, as having no or little choice but to stay,Footnote 30 with people concerned facing significant detrimental consequences on account of their immobility.Footnote 31 Even where immobility is by choice – for example, an expression of agency and resistanceFootnote 32 – adverse impacts may well need to be faced. Sonja Ayeb-Karlsson and co-authors, finally, highlight that the literature concerning trapped populations now also addresses scenarios where entrapment arises from environmental factors in conjunction with policies emanating from the state, such as impermeable borders or a lack of applicable legal frameworks which could facilitate movement.Footnote 33
2.1. Injustice?
The preceding section broadly sketched how climate change contributes to displacement and entrapment. In the former scenario there will be some who move on account of the effects of climate change without wanting to. Their preference would have been to stay put, and they may, in fact, move into situations of greater precarity. In the latter scenario some will find themselves in situations where survival or maintaining a livelihood or health and well-being have become extremely challenging and they therefore should in all probability move, but they are unable to do so on account of factors which include a lack of resources. Alternatively, they may be unwilling to do so on account of an express preference to stay put even in the face of increasing precarity. At least some of these scenarios will seem unfair, unjust and wrong to many, as clearly the patterns of behaviour revolve around harm, loss or substantial burdens, which affect some more than others. They concern the loss of both tangible and intangible things that many people value – most basically an inhabitable home and community, an ongoing livelihood base, a sense of personal security, an intimate connection with a place-based history, and so on. Importantly, these experiences of loss arise not by accident but from the actions of others who have not infrequently enjoyed the benefits that derive from these actions. Beyond grasping this injustice intuitively, however, it is important to look towards justice theory for guidance to properly and formally frame these experiences as amounting to injustice. The next section turns to justice theory to outline the origins and scope of corrective justice. A subsequent section then examines whether, from a vantage point of corrective justice, the experiences outlined so far amount to injustice.
3. CORRECTIVE JUSTICE: ORIGINS AND SCOPE
In essence, justice is thought to encapsulate the idea that every personFootnote 34 is rendered their dueFootnote 35 in the social life of humans; that the way in which one is treated is fair and right. This definition of justice is so broadly cast as to make questionable its relevance when discussing an issue as complex as climate change and its associated effects. A more useful framing may present questions of justice as posing one of two possible problems, the first of which is that someone once rightfully possessed something which was taken away, in particular because of another entity's action or inaction. What is due in this case is the restoration of that something, which may be an object, a state of affairs, or other property. Alternatively, someone does not have access to a fair share of what should be common resources or privileges (or, arguably, burdens). What is due in this instance is a balancing of shares of privileges and, indeed, burdens. The idea that justice revolves around these two problems stems from Aristotle,Footnote 36 who proposed, firstly, a distinction between ‘higher’, or divine, justice and the ‘particular’ justice of human relations. Secondly, he proposed that within the latter we find corrective and distributive justice, which encompass the two problems just noted:
Of particular justice and that which is just in the corresponding sense, (A) one kind is that which is manifested in distributions of honour or money or the other things that fall to be divided among those who have a share in the constitution … , and (B) one is that which plays a rectifying part in transactions between man and man.Footnote 37
Both types of particular, or human, justice are conceptualized around proportion – that is, its restoration or establishment – either between a doer and a sufferer of harm or loss (corrective justice) or between a have and a have-not of social goods (distributive justice). Martin Malin argues that both variants ‘share the goal of equality, which is the mean between excess and too little’.Footnote 38 With regard to corrective justice, an obligation is inferred to restore the sufferer of harm to a state akin to what it was before the harm was experienced. In the case of distributive justice, an obligation is inferred to bestow between associated entities the same share of communal bounties (and, arguably, burdens). Both are commonly associated with distinct branches of the law: corrective justice notably with private law, as expressed, for example, in the compensatory reasoning that undergirds tort and contract. Distributive justice is more prominent in public law; it resonates, for example, in progressive taxation or in legal provisions to secure a minimum degree of social welfare.Footnote 39
This article focuses on corrective justice. In its classical iteration, corrective justice is concerned primarily with the reversal of wrongs which stem from the harmful or injurious actions of others. Aristotle described it thus:
But the justice in transactions between man and man is a sort of equality indeed, and the injustice a sort of inequality … according to arithmetical proportion. For it makes no difference whether a good man has defrauded a bad man or a bad one a good one …; the law looks only to the distinctive character of the injury, and treats the parties as equal, if one is in the wrong and the other is being wronged, and if one inflicted injury and the other has received it. Therefore … the judge tries to equalize things by means of the penalty, taking away from the gain of the assailant.Footnote 40
He suggests that corrective justice is about a disturbance to the notional equality between formal equals which existed before the harm or injury was inflicted.Footnote 41 Over time, this understanding has undergone several transformations.Footnote 42 Aristotle positioned corrective justice to be a concern among ‘equal parties’. Subsequently, some have debated whether its scope and application are influenced by the social standing of the doer and sufferer of harm.Footnote 43 Others have debated the solidity of the claim that it is only corrective justice (as opposed to its alternate, distributive justice) which entails concrete – that is, legally enforceable – duties.Footnote 44 One of the most vigorous debates concerning corrective justice – and one of relevance to the discussion in this article – emerged in the 20th century in discussion between two schools of thought: instrumentalism and ethicism. Building more directly on Aristotle, and thus a notable proponent of the ethicist stance, Ernest Weinrib argues that:
[in] corrective justice, quantitative equality pairs one party with another. Corrective justice treats the defendant's unjust gain as correlative to the plaintiff's unjust loss. The disturbance of the equality connects two, and only two, [parties].Footnote 45
What seemingly matters in correction is that doer and sufferer are connected through the harm-causing act, which generates a duty to correct for the former, and only the former. Instrumentalists, on the other hand, argue that it is neither the relationship between the two that is essential in contemplating correction, nor the notion of fault or wrongdoing it implies, but that correction is enacted irrespective of the party that inflicts the harm. Jules Coleman, a notable proponent of the instrumentalist school, asks ‘[w]ith all the options available for allocating costs … , why impose them on particular injurers?’ rather than on other types of harm-reversal entity, including insurance-type bodies or similar risk- or loss-sharing mechanisms.Footnote 46
What remains indisputable in these debates is that corrective justice relates to the experience of harm, of something damaging having occurred, which ought to be rectified, with the reinstatement of a prior state of affairs, or something akin to it, as the goal. For some, what matters most is actor identification and, with it, fault or wrongdoing. For others, what matters more is harm identification and subsequent rectification, whereas the identification of a culprit who has acted wrongly is relatively immaterial. This distinction matters greatly when considering the responsibilities of a variety of actors under domestic or international law and regulation in the context of rectification of harm stemming from displacement or entrapment in the context of climate change. The distinction also matters when considering the extent to which such responsibilities may be legally enforced or avoided. Before turning to this legal analysis, the next section looks at important core concepts in ethicism and instrumentalism, respectively, and discusses their application to displacement (and its ‘relation’ entrapment) connected with climate change. What are the types of harm concerned? Is it possible to identify culprits whose responsibilities could be engaged? Finally, can harm stemming from displacement actually be rectified, in particular where the displacement experience has environmental origins? These questions, as well as their responses, also inform the subsequent law and policy discussion.
4. HARM, CULPRITS, RECTIFICATION AND CLIMATE DISPLACEMENT
Corrective justice is about harm reversal. For some, the core issue is to reverse the harm itself, so its identification is vital. For others, the most essential aspect of corrective justice is the identification of the doers of harm and, hence, of fault or wrongdoing. Either way, most agree that harm, or at least its effects, ought to be reversed. How are these matters to be conceptualized when climate change displacement and its corollary, entrapment, are added into the mix?
4.1. Harm
What is the harm in moving somewhere else? Undoubtedly, doing so is not necessarily or inevitably detrimental or harmful.Footnote 47 Nevertheless, the experience of harm is not foreign to people on the move, at least under certain conditions. The literature concerning those who move (or are moved) elsewhere involuntarily, in particular, paints a stark picture of potential harm and suffering.Footnote 48 Broadly speaking, harm refers to ‘a disruption of or interference in [an entity's] well-being, including damage to [its] body, psychological state, capacities to function, life plans, or resources over which we take [it] to have an entitlement’.Footnote 49 It refers to disturbances of a person's tangible and intangible ‘belongings’. Broadly speaking, disturbances to homes, livelihood bases, and infrastructure are examples of tangible harm when it is connected with moving elsewhere involuntarily, or when a move is not undertaken although it is seemingly or increasingly necessary. Importantly, especially where displacement is concerned, this type of disturbance is coupled with harm that revolves around loss of heritage, customs and traditions connected with place and livelihood, harm to a sense of self and identity, and many other non-material types of harm stemming from disruptions to the often place-based human experience of individuals and communities.Footnote 50 Even anticipating having to move somewhere else forcibly brings with it intangible harm.Footnote 51
The degree of harm experienced might depend on the scope of the displacement. Those who move far, including across borders, may struggle more with immaterial losses than those who move short distances and within a familiar cultural context, or those who do not move at all, even as material assets disintegrate. Equally, those who move in familiar contexts may have a different experience from those who move into distant camp-like conditions, which not infrequently preclude their participation or assimilation in the host cultural and economic contextFootnote 52 and can translate into prolonged precarity. Precarity might generally increase after moving away, not least as people move into more vulnerable settings compared with those from which they have departed. Yet, as has been pointed out, precarity may also increase by staying put.
The stimulus to move might also influence the experience of harm. It may not necessarily be tied singularly to an environmental motivator. However, even when environmental factors are the key motivator, their specific characteristics affect the nature of the harm, as does their location. Alison Heslin and co-authors detail how the experience of loss and damage is different, for example, for small islanders who face the consequences of sea-level rise and other climate hazards, compared with the experience of those in West Africa who face desertification and other climatic impacts as well as their consequences.Footnote 53 Harm in the context of climate change and displacement is varied and context-specific. Its identification and rectification must inevitably account for this and might have to be approached on a case-by-case basis.
4.2. Culprits
What about the ‘doers’ of any harm experienced? Are they, and their fault or wrongdoing, easily identified? Arguably not, as obstacles to swift identification are abundant.Footnote 54 Firstly, a large number of actors are involved in generating GHG emissions, none of whom alone emits individually damaging amounts and none of whom sets out deliberately to cause harm by engaging in activities that involve emissions.Footnote 55 Secondly, even if one were to contemplate the ‘doing’ of harm at the collective level by focusing on, say, states or major corporations whose aggregate emissions arguably amount to something harmful, emissions quantities have changed, and keep changing, over time. Borders and corporate ownership, too, have moved and continue to evolve. Thus, contemplating doers of harm in any context involving the effects of climate change is difficult. The challenge is at best only partially alleviated by emerging attribution science,Footnote 56 which seeks to pinpoint the drivers of extreme weather and climatic events. Referred to also as ‘probabilistic event attribution’ (PEA), attribution science does permit determinative assessments of the probable contribution of GHG emissions to local weather and other eventsFootnote 57 – although it is perhaps more instructive for slow-onset than for rapid-onset events. Nevertheless, inferring from PEA data the responsibility of a specific actor (or group of actors) for the adverse effects of specific events remains fraught with many difficulties,Footnote 58 and creates substantial challenges for achieving fault-based corrective justice.
When it comes to displacement in the context of climate change, causal challenges are yet more pronounced. The motivation to move is not necessarily tied to a single factor. Here, the causal challenges of attributing a climatic event and its effects to climate change and its drivers are coupled with the challenges of identifying that climatic event as the single or core driver of displacement (or entrapment). Arguably, however, the case may more easily be made for sudden climatic impacts than for impacts that evolve more slowly.
4.3. Rectification
If corrective justice is essentially about reversing or rectifying harm, then what are the opportunities for achieving rectification, and the obstacles against it, when harm stems from displacement or entrapment? The article has already clarified that harm may well result from having to move elsewhere, all the more so if an element of force is involved, as well as from being unable to do so. How does one return to a prior state of affairs in this context? Addressing the infliction of harm may involve a full apology, or even punishment of some sort.Footnote 59 However, pecuniary compensation is the more usual pathway pursued to achieve corrective justice, both in fault-based and no-fault claims. Here, two related issues deserve further elaboration. Firstly, how does one quantify the relevant harm? Secondly, how is intangible harm compensated? In the context of environmentally motivated displacement (and potential entrapment), there are relevant examples on which to draw. For the quantification of losses stemming from climate-driven displacement, it may be worth looking at several communities in the United States (US) state of Alaska, who are facing significant relocation pressures stemming from global warming-driven flooding and erosion caused by melting permafrost and diminishing sea ice.Footnote 60 Relocation is pressing for many of the largely Alaskan native communities concerned, not least to prevent entrapment in increasingly precarious conditions. To support relocation efforts, various domestic bodies, such as the Army Corps of Engineers, in recent years have quantified the (often significant) costs involved in relocating, or re-establishing, community and personal assets.Footnote 61 For one community concerned, the cost per individual has been estimated at USD 380,000.Footnote 62 That said, those involved acknowledge that quantification has not sufficiently accounted for the intangible harm that is likely to be involved.Footnote 63 Nevertheless, relocation of some affected communities is now under way.Footnote 64
Addressing the challenge of intangible harm perhaps somewhat more effectively was a compensation scheme which targeted harm from displacement or relocation stemming from 20th century US nuclear testing in the South Pacific.Footnote 65 For about a decade in the post-Second World War era, the US conducted dozens of nuclear tests in the Marshall Islands, which at the time were a United Nations (UN) Trust Territory administered by the US.Footnote 66 Notwithstanding obligations arising from its trusteeship to protect local populations, the US removed many people from several of the area's atolls prior to testing and kept – arguably entrapped – them in distant places while their home islands were polluted.Footnote 67 Eventually, those affected sought compensation, which resulted in a Nuclear Fund ‘to address past, present and future consequences of the Nuclear Testing Program’.Footnote 68 The Fund has been controversial, not least for having a finite budget and for precluding the claimants’ entitlement to seek alternatives for recompense. Nevertheless, it is worth highlighting here because seeking redress under the Nuclear Fund included the possibility of compensation for ‘hardship and suffering’ involved in both displacement and return,Footnote 69 thus covering intangible harm arising from the displacement experience.
Of course, corrective justice is not only about quantifying tangible and intangible harm in order to aid or effect compensation and rectification. It is about genuinely attempting, at least, to return to a prior state of affairs. Here, a very cautious approach is necessary, as recompense for displacement too often falls short of reinstating a prior state of affairs, even where recompense has been fairly generous. Rather, the evidence is strong that compensation-oriented approaches struggle to fully alleviate or rectify harm, which is much better tackled by also including consultation (in pursuit of participatory justice), income and livelihood restoration, and other additional safety nets to accompany it.Footnote 70 The experience of those who are relocated or displaced to make way for major infrastructure developments, such as dams, offers a good example of the failures of over-reliance on compensation. Focusing on reservoir resettlement in China, Li Heming and co-authors note the frequent experience of poverty following relocation because, although compensation materialized, it failed fully to ‘restore original living standards’.Footnote 71
The challenges to a corrective justice approach to displacement (and entrapment) in the context of climate change are therefore many. Harm is not always easily quantified, which is problematic for both ethicist and instrumentalist approaches to corrective justice. Culprits are difficult to identify, which is particularly detrimental for obtaining corrective justice that is fault-based. Full rectification or reversal is not straightforward to achieve, which again complicates both ethicist and instrumentalist takes on corrective justice. Nevertheless, legal and policy channels grounded in both ethicist and instrumental corrective justice have begun to emerge for those who face unwanted movement or entrapment. The article will now present some of the key relevant developments.
5. CLIMATE CHANGE, DISPLACEMENT AND CORRECTIVE JUSTICE IN LAW AND POLICY
Despite the challenges involved in approaching climate change-related harm, including harm stemming from displacement, from the perspective of corrective justice, embryonic efforts to do just that are under way in law and policy. This section focuses on key legal and policy developments concerning harm stemming from displacement in the context of climate change, with the analysis divided into an examination of fault-based (ethicist) and no-fault (instrumentalist) approaches. The assessment purports to be not so much all-encompassing as illustrative of what the key initiatives, possibilities, and shortfalls are or have been.
5.1. The Ethicist Approach
The ethicist's understanding of corrective justice is fault-based and premised on the identification of a culprit. Perpetrators of injustice, of course, are commonly considered by legal institutions such as courts and tribunals. So far, such institutions have struggled to determine that the GHG emissions attributable to a particular entity are sufficiently causally related to harm experienced in order to entail a responsibility to correct said harm.Footnote 72 A number of determinations by judicial or other public bodies have found that various entities, including public authorities and corporate actors, have a responsibility to curb or offset their emissions, or at least to curb them beyond initially agreed targets.Footnote 73 However, no rulings so far recognize a concrete responsibility to correct any harm that such emissions might have caused directly or indirectly.Footnote 74
Attempts to seek an authoritative determination grounded in corrective justice in the context of climate change harm have been made, and some have included a displacement dimension.Footnote 75 They have succeeded in varying degrees. To begin with, it is important to note that, although the notion of a right not to be displaced has gained some traction – especially in the public international law world – and with it corresponding responsibilities not to contribute to or cause displacement, this notion has soft law origins and is not considered to apply extraterritorially (against another state). This putative legal basis is therefore of limited use when seeking a determination to correct harm stemming from displacement in the climate change context.Footnote 76
The most pertinent current case may be that of Peruvian farmer Saúl Luciano Lliuya, which is currently making its way through the German legal system. Lliuya, supported by non-governmental organization (NGO) Germanwatch, alleges that the GHG emissions of German energy producer RWE have contributed to glacial melt in his Andean home community of Huaraz, threatening it with flooding and, ultimately, the potential displacement of the community. He also asserts that RWE, which is Europe's single biggest GHG emitter, knew about the harmful effects of its emissions. Although the case primarily tests responsibility for distant emitters to contribute to preventative and adaptation measures, and therefore does not address displacement directly, the decision may ultimately affect whether the villagers of Huaraz, and others in a similar position, have to move – or not.
The applicant is seeking a court order for RWE to provide the community with partial funding necessary for corrective measures to prevent flooding – equal to RWE's share in the GHG emissions which it can be said to have contributed historically to the threat of flooding.Footnote 77 In monetary terms the recompense sought is arguably negligible. However, as the case relies on tort-based reasoning, variants of which are found in most other legal systems, its impact, if successful, is not to be underestimated.Footnote 78 Although a lower court dismissed Lliuya's claim on causality grounds, a higher court has more recently concluded it has jurisdiction in the matter and that the ‘distance between emissions and impact do [sic] not rule out the application of general nuisance or tort law’.Footnote 79 With this determination, the court has undoubtedly taken a step towards overcoming constraints of jurisdiction and justiciability which plagued earlier claims involving climate change harm in both domestic and international legal fora.Footnote 80 That said, whether the case succeeds in the evidentiary phase, where causal claims will be dissected, remains to be seen. At present, the court is seeking permission from the state of Peru to inspect the relevant premises.Footnote 81
Human rights norms,Footnote 82 especially those stemming from international or regional frameworks, have also provided important grounds on the basis of which to challenge alleged culprits in the climate change harm context, including where displacement consequences are involved. The enjoyment of human rights (or the lack thereof) are undoubtedly impacted upon by the effects of climate change.Footnote 83 Some have raised concerns about the very survival of human rights and the rule of law as climate change accelerates.Footnote 84 Making such norms the foundation for a corrective justice-type claim has certainly proved to be challenging. A so-called Inuit petition lodged in the regional human rights system in the Americas in 2005 faltered. The Inter-American Commission on Human Rights concluded that it found it impossible to deduce that the alleged facts (habitat and livelihood degradation and destruction on account of the effects of climate change in the Arctic, threatening the continued survival of local communities and their way of life) amounted to a violation by the US of human rights under the American Declaration of the Rights and Duties of Man.Footnote 85
More promising perhaps was a now-concluded investigation by the Philippine Commission on Human Rights into corporate responsibility for human rights breaches stemming from the emissions generated by major carbon producers (carbon majors) active in the Philippines. The investigation was the result of a petition lodged with the Commission by domestic community organizations and concerned individuals with the aid of Greenpeace Southeast Asia.Footnote 86 It was argued that 47 carbon majors should be held accountable for a host of rights violations, which affect certain groups more than others, among them ‘displaced persons’.Footnote 87 Predictably, the corporations involved rejected responsibility, denying that ‘their particular acts … [are] directly causing or directly linked to the prejudice claimed’.Footnote 88 Nevertheless, the Commission has now determined that the corporations involved could be held accountable for rights violations stemming from the emissions they generate.Footnote 89 This undoubtedly provides hope for those seeking climate justice,Footnote 90 although the issue is yet to be fully tested in a court of law. The Commission does not have the authority to order penalties or compensation, but it has arguably set an informal precedent to be tested further.Footnote 91
More recently, Australia has found itself the subject of a complaint to the Human Rights Committee, which oversees state compliance with the International Covenant on Civil and Political Rights.Footnote 92 The complainants comprise a group of Traditional Owners from a number of Australia's Torres Strait Islands, who are supported, among others, by ClientEarth and Twenty Essex Chambers in the UK. They seek a finding that Australia's climate change mitigation policies lack in ambition, threaten enjoyment of a range of rights (to life, culture, and others) and continued human habitation in the Torres Strait Islands. The group's demands include that Australia phases out coal in energy production, reduces its emissions by 65% compared with 2005 levels by 2030, and commits at least AUSD 20 million for climate measures that deal with the adverse effects of climate change.Footnote 93 Although it is important to note that the Committee can only recommend certain actions or outcomes and cannot order compensation, a positive finding would undoubtedly contribute to invigorating the pursuit of justice for climate change harm based on human rights. It is promising that the Committee found in a recent General Comment concerning the right to life that ‘[e]nvironmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life’. It further noted state party obligations to take measures to preserve the environment and protect it against adverse influences, including those stemming from climate change.Footnote 94
Both tort law and domestic law, as well as regional and international human rights law, have provided grounds in various jurisdictions to seek the rectification of harm from alleged culprits in cases where displacement or entrapment in worsening conditions is threatened or feared in the context of climate change. These developments are in their infancy and face hurdles which centre around issues of causality and enforcement. Nevertheless, they continue to be pursued, and continued legal activism may present victims with avenues to pursue culprits.
5.2. The Instrumentalist Approach
For instrumentalists, pursuing a particular culprit is less important than achieving rectification or reversal of harm. Here, it is particularly useful to look at initiatives which have emerged under the umbrella of the UN Framework Convention on Climate Change (UNFCCC)Footnote 95 in recent years to address climate change loss and damage. The UNFCCC regime remains fundamentally grounded in the principle of ‘common but differentiated responsibilities and respective capabilities’: the idea that some have contributed more to anthropogenic climate change than others, that some will suffer its effects more than others, and that some can do more to address this than others. Partially grounded in this understanding, in 2013 the UNFCCC Conference of the Parties (COP) established the Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts (Warsaw Mechanism),Footnote 96 alongside an Executive Committee to guide its implementation. The Paris Agreement,Footnote 97 which has been effective since 2016, also includes dedicated provisions concerning loss and damage in Article 8. Areas for action and support include ‘risk insurance facilities, climate risk pooling and other insurance solutions’, reflecting an instrumentalist approach to corrective justice (albeit a market-based one which may only marginally relate to corrective justice). Institutionally, the only initiative that has been actually supported so far is the establishment of a Clearing House for Risk Transfer, to serve as a ‘repository for information’.Footnote 98
The Paris COP furthermore agreed that the Warsaw Mechanism's Executive Committee would set up a Task Force on Displacement to work with relevant bodies internal and external to the UNFCCC to ‘develop recommendations for integrated approaches to avert, minimize and address displacement related to the adverse impacts of climate change’.Footnote 99 Its initial terms of reference were to rely on science and evidence in order to ‘[i]dentify legal, policy and institutional challenges’, as well as ‘good practices’ and ‘lessons learned’,Footnote 100 which avoids the language of corrective justice or harm or wrongs having occurred. The Taskforce is presently engaged in Phase 2 (2019–21) and has been granted enhanced spheres in which to act.Footnote 101 These still cover the identification and collation of best practice, but have been expanded to include the capacity to provide ‘[e]nhanced support for formulating laws, policies and strategies that reflect efforts to avert, minimize and address displacement’.Footnote 102 There is no reason to conclude that this support could not also cover rectification measures. That said, it is important to highlight that the Decision concerning adoption of the Paris Agreement emphasizes that provision for loss and damage ‘does not involve or provide a basis for any liability or compensation’.Footnote 103 This calls into question, for now, the possibility of corrective resolution of loss or harm stemming from climate change, including harm arising from displacement.
Nevertheless, the emphasis on insurance and similar mechanisms in the Paris Agreement leaves open the possibility of some instrumentalist response to harm related to climate change, albeit via mechanisms which are imperfect from the perspective of corrective justice, not least because inputs from substantial GHG emitters presently are not considered mandatory. Insurance-type mechanisms relevant to climate change, and even climate mobility, have emerged in recent years, both nationally and regionally.Footnote 104 These schemes support farmers in conditions of drought, international labour migrants in the pursuit of work overseas, and those who have borne the brunt of severe weather events in rebuilding. However, such schemes need to be scaled up in order to have an impact in addressing the many types of harm stemming from climate change, including in relation to displacement and entrapment, and undoubtedly this requires resources, including financial input.Footnote 105 For now the UNFCCC Loss and Damage Mechanism itself is not an express beneficiary of financial contributions as agreed under the Paris Agreement, in contrast to the mechanisms governing mitigation and adaptation measures.Footnote 106 Even if it were, it would be likely to have to compete with the mitigation and adaptation sphere for scarce resources, as many potential contributors to climate finance mechanisms do not contribute in accordance with capacity and responsibilities.Footnote 107
The climate finance architecture is intricate and comprises many funds.Footnote 108 Among growing complexity, the UNFCCC COP set up the Green Climate Fund in 2011 to ‘support projects, programmes, policies and other activities in developing country Parties’.Footnote 109 The Fund was to ‘receive financial inputs from developed country Parties to the Convention’ as well as other sources.Footnote 110 Hence, it was to be underpinned by vaguely corrective principles. However, billions and billions of dollars in funding are required to address comprehensively the harm of climate change in poorer countries alone.Footnote 111 Pledges and contributions to the Green Climate Fund (as well as others) have not been able to keep up with the stipulated demand,Footnote 112 which is a significant issue for rectification.
6. CONCLUSION
Arguing that displacement (or entrapment) stemming from climate change raises issues from the perspective of justice is intuitively correct and theoretically eminently possible. Justice-based discourses must join others that are preoccupied with conceptualizing solutions for those who cannot stay put in the face of climate change. Among an array of justice-inflected perspectives, corrective justice issues stick out as particularly pertinent. Given the accelerating nature of climate change, coupled with the multiplication of its effects, the increasingly visible suffering stemming from climate change and the continuing absence of sufficient political action to correct injustice, it is unsurprising that initiatives that seek to address the injustices of climate change have now begun to emerge. Clearly, it is not enough to simply identify the relevant injustices, and more must be done to crystalize and advance their practical resolution.Footnote 113 Many pertinent developments are arguably in their infancy, though their relevance may well increase with time and urgency, and as those affected increasingly resort creatively to the institutional, legal and other channels available to have injustices heard and addressed.Footnote 114
Because obligations grounded in corrective justice are sometimes considered more weighty, or perhaps more formal, than those grounded in other types of justice, resistance by emitters to rectification-type schemes or processes has been fairly pronounced. Nevertheless, somewhat promising developments are under way in both the ethicist and instrumentalist realms. In the former, an array of case law has begun to emerge which seeks to hold to account those who cause harm with regard to climate change. Causal hurdles remain significant, as do those related to enforcement, but a willingness by courts and similar bodies to confront the issue is emerging, including in case law that involves issues of displacement. Although it is unlikely that success in court would ever deliver full rectification of the relevant harm or wrongs, the symbolic value of advances in court should not be underestimated. The many types of harm and the wrongs of climate change would be formally acknowledged. Moreover, with legal advances may come climate-positive action, as major emitters – or their insurers – respond to the threat of successful litigation.
In the instrumentalist realm, no-fault approaches to tackling the harm of climate change have also slowly begun to emerge. The problem here is related less to establishing causality than to determining contribution. No-fault compensation requires resourcing and this is readily avoided where nobody is concretely responsible. However, as it becomes more obvious that climate change and its effects are deeply harmful, the pressure to contribute to rectification by instrumentalist means may build. Importantly, instrumentalist regimes that address climate change harm must ensure that harm arising in relation to displacement and entrapment is worthy of remediation via compensatory channels in the same way as other detrimental consequences of climate change.
