‘Climate Reparations’ by Maxine Burkett

[Associate Professor Maxine Burkett is the Director of the Center for Island Climate Adaption and Policy at the William S. Richardson School of Law, University of Hawai’i at Manoa.]

With the uncertain — and deeply disappointing — conclusion of the COP15, one thing has become crystal clear: states and vulnerable communities must explore alternative avenues to address the climate crisis and its uneven effects. In my article, I introduce a theory of climate reparations to meet the great and disproportionate injuries that will result from climate change.

The current and anticipated climate impacts demonstrate a grand irony: those who will suffer most acutely are also those who are least responsible for the crisis to date. That irony introduces a great ethical dilemma, one that our systems of law and governance are ill‑equipped to accommodate. Indeed, attempts to right this imbalance between fault and consequence have resulted in a cacophony of political negotiation and legal action between and amongst various political scales that have yielded insufficient remedies, if any. In the absence of a substantial commitment to remedy the harm faced by the climate vulnerable (those set to suffer first and worst), reparations for damage caused by climate change can provide a comprehensive organising principle for claims against the most responsible while placing key ethics and justice concerns — concerns that have been heretofore woefully under-emphasised — at the centre of the climate law and policy debate. In other words, a reparations frame can organise communities of victims behind a common articulation of the violation.

In the past year, calls for climate reparations have become more numerous. They have meant one thing, however — mandatory compensation to developing nations for the increasingly devastating effects of CO₂ emissions. In recent decades, the scope and nature of reparations claims have, generally, shifted dramatically. Rather than serving merely as financial compensation to the victor for past damages suffered, reparations efforts now have a character and process with inherent value. Not simply looking to the past, reparative efforts are also forward-looking as they attempt to honour the past. And rather than fixate on actual remedy, the realisation of moral repair and social solidarity is as much bound up in the process as it is in the result. In sum, a reparations effort has both ‘ends’ and ‘means’ value.

A successful reparations effort can result in aggressive mitigation from the developed world while also ensuring long-term support for critical adaptation measures for the most vulnerable. Most importantly, however, reparations efforts can engage the globe — particularly those in the developed world — in the great ethical challenge posed by climate change and the developed world’s lacklustre response. For example, public outrage in the United States at the collapse in livelihood of hundreds of millions is virtually non‑existent. A discussion distinct from ‘caps’, ‘trades’, and ‘costs to the average consumer’ will help to illuminate suffering of the climate vulnerable, and the developed world’s understanding of its own responsibility. A reparations effort can shine that light.

For any reparative scheme to be truly successful, however, the remedy must introduce mechanisms that limit the ability of the perpetrator to repeat the offending act. In the case of climate change, the developed world needs to rapidly abandon its use of fossil fuels and replace that usage with materials that are inexhaustible and, at the same time, do not produce life‑endangering externalities. The reparations effort, beyond the tangible remedies that result, emerges as a valuable avenue for truly grappling with the profound moral problems that climate change has introduced. If done effectively, reparations, unlike the existing remedial mechanisms, can foster social solidarity and a just state of affairs — an outcome desperately needed as humanity faces its greatest challenge.

The full article can be read here.