Ensuring Repair through Reparations: A Response to Hari M. Osofsky by Maxine Burkett

by Melbourne Journal of International Law

Professor Osofsky’s response to my article is convincing and her exploration of the gaps in my earlier discussion of climate reparations is welcome — in fact, it is encouraged. The hope in writing an article on climate reparations was to investigate seriously alternate avenues for remedy for the climate vulnerable and encourage creativity across scales, between novel claimants, and for individuals or billions, in careful response to their current and forecasted environment. It is the first brush stroke on a quite large, and perhaps expanding, canvas. What should not be lost, however, is the unique reason why a reparations approach is imperative.

The greatest value of a reparations effort is to center the moral issues at base and foster the key elements of a just state of affair. Trust and recognition of harm are key steps to reaching that just state of affairs. The global negotiations under the UNFCCC and other parallel processes have been marked by distrust between nations as well key stakeholders. Further, while Professor Osofsky is correct in citing the very real and positive outcomes of climate-related litigation, trust-building is not a core element of the litigation process — in fact, trust is often its first casualty. Regarding recognition, the climate vulnerable have been relatively invisible, with a notable exception being their strong presence within the COP15 negotiation halls and without. Their relative absence in the major modes of climate problem-solving to date, however, makes the threats to their very existence even more haunting now. Reparations for the climate vulnerable would aim to recognise the humanity of each individual subject to the harms of excess emissions, foster civic trust — between large emitters of any stripe and the most vulnerable — and manifest social solidarity. As I have structured it, those are its goal and the test of its success.

Building trust between the greatest emitters and the most vulnerable is a challenge at its most acute in the climate change context. Utilising an alternative mechanism, like reparations, as an instrument of justice can establish or restore civic trust across borders and institutions. The reparative approach is a vital addition because, unlike its necessary counterparts, it can ensure a more complete kind of repair — one that includes a mutual commitment to shared norms and values and lays the foundation for greater collaboration, rather than acrimony and embitterment, as we press ahead in addressing the challenge.

Now, it would be a mistake to believe that this early articulation of a climate reparations framework can guarantee a total panacea. It is, I believe, an important start — one that benefits from critique, amendment, and refinement. The product of a successful reparative approach will be transformative for global communities and for that reason requires serious collaboration.

http://opiniojuris.org/2010/02/11/ensuring-repair-through-reparations-a-response-to-hari-m-osofsky-by-maxine-burkett/

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