A just alternative to litigation: applying restorative justice to climate-related loss and damage

Abstract

Climate litigation is increasingly a feature of international climate policy. However, loss and damage cases have mostly been unsuccessful due to tensions around uncertainty, attribution, and the relationship between climate change and extreme weather events. While there is consensus that Annex I Parties to the United Nations Framework Convention on Climate Change (UNFCCC) have contributed more to historical greenhouse gas emissions than non-Annex I Parties have, there is great reluctance on their part to take responsibility for loss and damage. Considering the shortcomings of climate litigation and the impasse in the UNFCCC, we propose an alternative, non-judicial approach to addressing loss and damage-restorative justice. Applying a four-stage framework, we draw on the experience of non-Annex I Parties in the Caribbean with Hurricanes Irma and Maria in 2017 to (1) argue that existing attribution models can help identify restorative justice cases; (2) scope a role for the Warsaw International Mechanism in process design and preparation; (3) make a case for truth and reconciliation conferences, and restitution, as part of the restorative dialogue; and (4) call for the integration of restorative justice norms into global climate governance as a pathway for progressing negotiations.

Specifics of resolving disputes in the field of climate protection by state courts and arbitration

“…We join the opinion of most authors that in the modern sense, climate disputes are any disputes arising in connection with the consequences of climate change and climate change policies provided for by the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement of 2015 (Stuart-Smith, 2021). However, the question of the first climate claims, and what specific disputes are included in this concept remains controversial to this day (Robinson & D'Arcy, 2021).…”

An emerging governmentality of climate change loss and damage

“…The establishment of the WIM in 2013 marked the official debut of L&D in the UNFCCC negotiations and despite its mandate to address loss and damage, remained largely stuck at the stage of knowledge enhancement and technical discussions. With the persistent desire for compensation, governance actors and scholars framed L&D in legal language and concepts, with tort-like claims being most visible, but these have been ultimately unsuccessful due to challenges of proving causation and a general reluctance by powerful states to address their historical responsibilities and persistent trade, debt, and other dependencies between states (Cameron and Weyman 2021; Millar, Gascoigne and Caldwell 2013; Robinson and Carlson 2021). Many actors remain uncertain of how to operationalise L&D, especially at the national level, or even its actual utility for the reduction of climate change harms (Calliari and Vanhala 2022).…”

Strengthening the science–policy interface in the climate migration field

“…For example, the protection gap for people displaced by climatic events as well as those who remain immobile have been repeatedly identified by scholars. Activist groups have demanded further assistance from industrialized countries to compensate affected and displaced persons for potential transboundary damage (Doelle & Seck, 2020; Horton et al, 2021; McAdam, 2012; Robinson & Carlson, 2021; Rosenow‐Williams & Gemenne, 2016; Sheller, 2018).…”