Abstract/Summary

Anthropogenic greenhouse gas (“GHG”) emissions have caused unprecedented change in planetary systems, resulting in tremendous social and ecological impacts. The most vulnerable individuals, communities, and countries are disproportionately affected, even though they are often least responsible for, and benefit less from, these emissions. Some of these countries have claimed reparations for the impacts of climate change impacts for over three decades, but they have achieved little success. Recently, however, these claims have gained some ground. In 2022, the Parties to the Paris Agreement decided to establish “new funding arrangements” to assist developing countries in “responding to loss and damage.” In the following months, states and international organizations have requested three advisory opinions from international courts on the obligations of States relating to climate change. This Article considers whether and how climate reparation could be made. The analysis focuses on international law and policy. This is justified because most recent developments have unfolded on the international plane and because international institutions appear to be better equipped to deal with the global nature of climate reparations. Most proposals for climate reparations so far have suggested that industrial states ought to pay damages for all climate impacts resulting from their GHG emissions. These proposals either assume that every GHG emission is wrongful or that wrongfulness is not a relevant condition for reparation. This Article develops a narrower but more compelling argument, calling for climate reparations for climate wrongs. This argument focuses on the consequences of GHG emissions associated with a breach of a state’s international law obligations on the mitigation of climate change, rather than the consequences of all GHG emissions. It thus builds on well-established rules on the responsibility of states for internationally wrongful acts, and it avoids many of the intricate moral questions and political concerns that have impeded claims for comprehensive climate reparations so far. The Article starts by retracing the political and judicial attempts at imposing climate reparations over the last three decades. It then outlines a legal argument for climate reparations based on the international law on the responsibility of states for internationally wrongful acts. Lastly, it contemplates concrete ways courts and negotiators could implement climate reparations.