Climate of Justice

Increasingly, litigants recognize the strategic and discursive utility of using human rights proceedings in the fight against climate change. One of the key issues here is the pursuit of remedies for ‘loss and damages’, referring to harm arising from the deleterious effects of climate change for which adaptation and mitigation measures are inaccessible or insufficient. This is an important avenue for stakeholders from the Global South who are worst affected by climate change, especially as negotiations on climate finance continue to prove unfruitful for these stakeholders.

Following a request from the Human Rights Council (UNHRC), the United Nations Secretary General’s (UNSG) office recently issued a report on loss and damage and human rights. The report, which mostly analyzed current developments on the topic, was discussed by states in the  UNHRC’s 57th session. To us, the report is interesting for another reason—it attempts to mainstream the concept of ‘transitional justice’ in climate change discourse (paras 50-52). While literature specifically addressing the link between transitional justice and climate change is emerging, the report represents the first significant mention of this connection in an interstate forum.

This piece briefly explores the utility of borrowing insights from transitional justice into the climate change context. We believe this is not a radical proposition, as existing legal principles concerning climate change reflect the considerations featuring in UNSG’s understanding of transitional justice. However, recharacterizing contentious issues such as loss and damage litigations through a transitional justice lens can offer important symbolic and practical remedies.

Introducing Transitional Climate Justice

International lawyers are most familiar with transitional justice in the context of post-conflict reconstruction and international criminal law. It concerns societies trying to heal from past wrongs and moving towards a better future. It emphasizes confronting historical wrongs publicly, and bridging the animosity between different communities with a view towards reconciliation. Other similar points of emphasis are the creation of institutions such as Truth Commissions, which are meant to memorialize past wrongs, and ensuring the participation of affected communities in the dispensation of justice.

How might transitional justice relate to what appears to be an entirely different complex—i.e., climate change? If we view conflicts as the only phenomena where this concept is apropos, then the connection could be as follows: the effects of climate change, such as resource scarcity, may incite or worsen conflicts; or indeed, conflicts may conversely worsen the impact of climate change. In this sense, climatic considerations might feature into existing transitional justice infrastructures.

However, this is not the UNSG’s intention in introducing transitional justice in climate change discourse. Considering emerging scholarship on this linkage, the UNSG sees post-conflict transition as one of many possible contexts where transitional justice holds significance. The UNSG is more interested in the principled basis underlying transitional justice, particularly the recognition of systemic past wrongs and the possibility of reconciliation (para 51).

They provoke states to historicize how phenomena like colonialism and the dispossession of indigenous land contributed to climate change (para 51). Citing Sonja Klinsky and Jasmina Brankovic, the leading scholars on transitional climate justice, they emphasize the injustice inherent in the fact that those who are least responsible for emissions are the ones who are suffering consequences resulting from such emissions. This position recognizes the developed world’s predominant role, particularly during industrialization, in causing climate change, and stresses the need for “equitable” approaches towards climate justice.

Coming from the UNSG’s office in a politically sensitive body like the UNHRC, these references to transitional climate justice are remarkable. The question arises, however: what new analytical and practical value does this recognition bring?

Analytical Implications

Under the United Nations Framework Convention on Climate Change (UNFCCC) setting, states formulated the concept of common but differentiated responsibilities and respective capabilities (CBDR-RC). This concept means that developed, developing, and least developed countries alike have obligations relating to climate change. However, the conduct expected of them differs as these are ‘due diligence’ obligations, which vary in line with the capacity and resources available to a state. This differential recognizes that the developing world has higher development priorities and distinct socio-economic circumstances. It is important to notice colonialism as a historical reason for that differential, with erstwhile empires industrializing at the cost of the formerly colonized world—in line with a view to correcting historical harm (see paras 22 and 50-51 of the UNSG’s report).

If we consider the UNSG’s perspective on transitional justice, then we could conceive of the CBDR-RC concept as a practical manifestation thereof. We believe that transitional justice does not introduce propositions currently alien to discussions surrounding climate change. It is more apt to think of transitional justice as a conceptual framework that helps cohere and explain existing developments and debates, making explicit the issues of justice involved. It is, then, a way to reframe ongoing discourse, refining the vocabulary available to advocates of climate justice.

From our reading of the UNHRC dialogue following the UNSG’s report, it should be noted that only a few states engaged with the transitional justice vocabulary directly (such as Indonesia and Luxembourg). However, many states emphasized the historical and material factors the UNSG believes transitional climate justice represents (see for example, Eritrea, India, Namibia, and Zimbabwe). Thus, even where the concept of transitional justice is not referred to by its name, we can see that states are conversing on the themes it concerns.

Such analytical contributions aside, Luxembourg posed the question of how transitional climate justice can contribute to practical issues concerning loss and damage, including within the UNFCCC set-up. What does the foregoing change in the context of reparations for loss and damage? Below, we outline some initial possibilities.

Practical Implications

The UNSG notes the prospect of truth-seeking measures, such as an International Commission of Inquiry (para 52), or by analogy, Truth Commissions, in the climate change and human rights sphere. The UNSG cited the High Commissioner for Human Rights, who similarly supported truth-seeking initiatives to amplify the voices of affected communities, recognizing that truth is often denied to them by ‘the misinformation campaigns of the fossil fuel lobby’. Scholars emphasize the importance of memorializing past climatic wrongs through traditional transitional justice mechanisms to signal a shift towards a just future. Others question whether this aligns with transitional justice’s goal of reconciliation, as raising historical responsibility may jeopardize compromises between developed and developing countries.

However, transitional justice cannot truly be achieved at the cost of truth, in this case, the causal assignment of historical responsibility for climate change, as well as loss and damage. The climate finance failures at COP29 show that developing countries could benefit from every possible tool towards establishing the urgency of loss and damage measures expected from the Global North, attempting to dismiss such measures. Consequently, truth-seeking measures providing robust scientific foundations for loss and damage remedies may be practically and symbolically useful for Global South agendas.

In a similar vein, in a world where states today are expected to ensure their development occurs ‘sustainably’, it is unlikely that developing countries will undergo a similar industrialization phase to that experienced by developed countries historically, given the potential environmental costs thereof. The application of a transitional justice lens serves to reinforce the necessity of considering equity and reparation in developing countries’ pursuit of strong climate financing from developed countries. One potential avenue for further exploration could be the proposition that the Loss and Damage Fund, established under the auspices of the UNFCCC, could be conceptualized as a transitional justice instrument.

Recall, however, that the UNSG’s report explores loss and damage in respect of human rights, where violations inherently involve a person or a group claiming specific injury caused by a respondent’s acts or omissions. As the UNSG recommends (para 51), addressing structural inequalities from a transitional justice perspective would enable identifying the root causes of harm arising from climate change. Institutions like Truth Commissions could be significant towards empowering marginalized communities against such violators.

It will be interesting to see whether human rights bodies approach this possibility, particularly the Inter-American Court of Human Rights (IACtHR), which has been proactive on issues concerning the environment (including for historically oppressed groups like indigenous communities) and transitional justice. The IACtHR’s upcoming advisory opinion on the climate emergency could offer insights.

A key strategic aim of loss and damage litigations is the symbolic value of victories before impartial courts, especially in transnational litigations where claimants from developing countries approach national courts of developed countries. Framing loss and damage issues as involving transitional justice could similarly push international courts to focus on an often overlooked form of reparations under the law of state responsibility — satisfaction. This could involve apologies or acknowledgements of past wrongs, in our context, climate change-induced loss and damage.

The International Court of Justice (ICJ) in its landmark forthcoming advisory opinion on the Obligations of States in Respect of Climate Change has the opportunity to consider the “consequences” (including reparations) of such internationally wrongful acts, including the kind of human rights violations cited by litigants who seek loss and damage remedies. Thus, the role of satisfaction as regards transitional climate justice considerations may be identified.

The symbolic nature of the ongoing proceedings is widely recognized, giving space to many vulnerable and marginalized voices. The ICJ, or individual judges through separate opinions, could draw on the UNSG’s report, and states’ future contributions. It will be interesting to see if and how transitional justice may be referenced during these ongoing oral hearings.

In the written proceedings, it is noteworthy that Colombia referenced a decision of its local transitional justice infrastructure in post-conflict context to consider the “environment as the holder of rights in this transitional justice system” (para 2.42). This, however, is a narrow reference compared to the scope of the concept as understood by the UNSG. Time will tell whether transitional climate justice more broadly substantially contributes to these strategic litigations.

Conclusion

While forming a small part of the UNSG’s judicious report on climate change, human rights, and loss and damages, his views on transitional climate justice deserve engagement by observers. As with any popular concept with contested implications in the climate change framework, this too will likely be marked by controversy in the future, potentially being defined primarily by judicial actors. In any case, it is not a concept alien to existing climate change discourse. Yet it promises a refined framing for marginalized litigants towards seeking symbolic and practical remedies.