While the impacts of climate change become increasingly challenging, states’ climate action is lagging behind. Activities and movements aiming to prompt more progressive climate actions are increasingly emerging outside of, and bypassing, climate negotiations under the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement. They include social movements, the rapid increase in climate change litigation, and the requests for advisory opinions in international tribunals, most notably in the International Court of Justice (ICJ). How can we understand and engage with the growing relevance of such attempts outside the negotiations?
This blog post explores this question by discussing the Small Island Developing States’ (SIDS) initiatives to seek adequate responses for loss and damage and climate reparations. We argue that the socio-legal understanding of the SIDS’ initiatives explains how SIDS actively pluralize the forum for negotiating these issues. Taking stock of the existing debates on international environmental law’s legitimacy and the Third World Approaches to International Law (TWAIL), we discuss how these initiatives from some of the most vulnerable countries to climate change inform our continued search for the legitimacy of environmental law-making processes.
International climate change law’s search for legitimacy
Climate Change 2022: Impacts, Adaptation and Vulnerability, an assessment by the Intergovernmental Panel on Climate Change (IPCC)’s Working Group II, in its chapter on decision-making options for managing risks, differentiates between enabling and catalyzing conditions in trying to understand the importance of various movements to promote climate action. The IPCC concludes that enabling conditions, which consist of governance, finance, and technology, are still not sufficient to address the climate crisis. Catalyzing conditions such as climate litigation, social movements, and policy entrepreneurs are key to motivating climate actions. It is important to note that this view assumes that the political goals of the climate actions are settled, and the focus should be on realizing the actions toward them. In the language of law, it concerns the effectiveness or implementation of international environmental laws. In contrast, this view does not sufficiently address the consideration of the legitimacy of the decision-making and policy-making processes. In his seminal article, Daniel Bodansky points out that the more international environmental law exercises its regulatory authority over states, communities, and people, the more “its lack of transparency and accountability will become increasingly problematic.” From such a viewpoint, the relationship between climate negotiations and litigation would require careful consideration. Which approach, or what mix of the two, is a just and legitimate process to construct international responses to climate change?
This question of legitimacy has arisen in the context of efforts to negotiate a loss and damage framework under the auspices of the UNFCCC and, simultaneously, advance climate reparations through domestic and international court processes. These activities have raised questions about how we should understand and address the issue of loss, damage, states’ responsibility, and potential reparations. One can frame the parallel tracks of the negotiation and court proceedings as a dichotomy of politics and law/justice, highlighting that certain countries can bring a request for an advisory opinion or a contentious case to the ICJ as they believe in the legal and justice approach to climate reparations and loss and damage, rather than wait for the frustratingly slow political negotiations to play out. This can be considered as a performative discussion to characterize the ICJ as a more appropriate venue to debate loss, damage and reparations with the elements of legality and justice.
In contrast, we argue that the socio-legal understanding of the law-making processes informs our pursuit of fluid and elusive legitimacy. As Kati Kulovesi and her co-authors rightly depict, environmental governance is a futile field for trial-and-error in terms of understanding and, importantly, normatively engaging with the pluralization and multiplication of law-making processes under globalization. And such engagement may have critical potential to reimagine the current legal and political constellations.
SIDS’ initiatives on loss, damage, and reparations
SIDS are at the core of the discussions about loss and damage, climate reparations, and the contested epistemologies of these domains. In the initial phase of the climate change negotiations in 1991, SIDS argued that certain climate change impacts were inevitable and required compensation. Since then, they have been vocal in pursuing actions to address loss and damage under the UNFCCC, initiated international court cases at the International Tribunal for the Law of the Sea (ITLOS) and the ICJ, and advocated for international law on statehood in the context of rising sea levels, among other things. Existing studies have not sufficiently assessed the constructive, law-making potential of these initiatives by SIDS in the context of contested legitimacy. For that purpose, international lawyers can find their analytical perspective from one of their critical, and probably most contested, fields of debate, the TWAIL. Simply put, TWAIL has proposed a criticism of the eurocentrism of international law, intervening in the struggles for decolonizing international law by the Global South. Being the most affected victims of the climate impacts due to their geographic and socio-economic conditions, the SIDS’ voices have an ethical and normative power in law-making in the area of climate reparations. The question is how much authority or legitimacy the SIDS have, and in what way international legal scholars should engage with this question.
Inspired by the TWAIL perspective, one way to consider SIDS’ intervention is to frame it as an encounter of different legal ideas. Sundhya Pahuja argued that international laws should not be regarded as a given, static system but as a place for “ongoing encounters between rival jurisdictions.” This idea of encounters provides us both the viewpoint to understand the stakes of the SIDS’ initiatives to law-making and a critical perspective on how their interventions are responded to, absorbed, or rejected by the international legal system. Assessments of such processes will tell us how the actual law-making process unfolds in the field of climate change. From this viewpoint, climate change negotiations and the ICJ process are both political and legal—they are played out as political negotiations and struggles under respective legal frameworks. In both processes laws construct and coordinate a field where different legal ideas meet for the battle for loss, damage, responsibility, and reparations, and simultaneously, such laws are continuously provoked and reimagined.
Exploring SIDS’ views at the ICJ advisory proceedings
From this angle, we can fruitfully engage with the opinions submitted to the ICJ advisory proceedings by multiple countries of the Global South and SIDS, such as Vanuatu, which initiated the entire process. Put differently, the analytical lens informed by the TWAIL provides a contextualized assessment of Vanuatu’s action to seek the advisory opinion of the ICJ and the opinions submitted during that process. We will only discuss a few observations here and elaborate on those points elsewhere.
First, the SIDS interrogate the key legal principle by situating it in the context of climate change. The principle of self-determination is one of the evident examples here. From the beginning, the SIDS have warned the international community that climate change threatens their very survival. This has evolved into the key diplomatic position of the SIDS, as most notably depicted in the Boe Declaration on Regional Security in 2018, adopted by the Pacific Islands Forum, which described climate change as “the single greatest threat to the livelihoods, security and wellbeing of the peoples of the Pacific.”
This notion of survival of the people is described in terms of the right to self-determination in Vanuatu’s submission to the ICJ: “The Court can provide advice […] to ensure the continued enjoyment of the right to self-determination by peoples which, due to loss and damage, will be unable to continue to fully exercise their right to self-determination in their own territory.” Here, Vanuatu incorporates the idea of self-determination by affected people. Arguably, this notion is akin to the idea behind the discussion on loss and damage under the UNFCCC, where, in contrast with other items such as mitigation and adaptation, the emphasis is on the agency of particularly vulnerable communities and people. And in so doing, Vanuatu emphasizes the cultural and spiritual relationship between people and lands in the Pacific. Engaging with the conceptual ambiguity of who the people are under the notion of self-determination, Vanuatu incorporates the idea developed under the UNFCCC in reimagining the concept of self-determination in climate change and sea-level rise.
Second, we observe how notions developed under climate negotiations translated into arguments before the ICJ. One example is non-economic loss, the key concept elaborated through negotiation and technical investigation under the UNFCCC and its Warsaw International Mechanism. In its ICJ submission, Vanuatu claims, “Reparation also entails compensation when restitution is not possible (including for both economic and non-economic loss and damage, and for damage caused to the environment in and of itself).” Here, Vanuatu borrows the idea from the UNFCCC (in which the SIDS are actively engaged) in elaborating the content of climate reparations. Another example is mobility, where the SIDS actively disseminate this concept in international society through various channels, such as the Pacific Islands Forum Secretariat (PIFS)’ Pacific Regional Framework on Climate Mobility. In parallel, we have seen the gradual incorporation of climate mobility, rather than displacement, in the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (WIM)’s work under the UNFCCC. In its ICJ submission, Vanuatu utilizes this concept in populating the contour of the obligation of reparation, stating: “The obligation of reparation entails, first and foremost, restitution when this is possible (including support for adaptive capacity, non-monetary redress for the human mobility, including displacement and migration, caused by the adverse effects of climate change, recognition of sovereignty, statehood, territory and maritime boundaries despite sea-level rise).” These are examples of SIDS utilizing the conceptual evolution under the UNFCCC in the ICJ process.
Lastly, we observe that SIDS engage with the contested epistemology of loss and damage. Loss and damage, under the UNFCCC, is not about liability or compensation. The COP decision accompanying the Paris Agreement states that the Article 8 of the Paris Agreement on loss and damage “does not involve or provide a basis for any liability or compensation.” It is loss and damage other than the compensation/liability, which is the ambiguity that the parties could agree upon. However, it is important to remember that SIDS have reserved the right to open the discussion about compensation/liability under the international legal system. For instance, the Cook Islands, when accepting the Paris Agreement, declared its understanding that “acceptance of the Paris Agreement and its application shall in no way constitute a renunciation of any rights under international law concerning State responsibility for the adverse effects of climate change…” Throughout the written statements to the ICJ, Vanuatu uses the term loss and damage in the sense of both risk management and climate reparation. Thus, on one hand, Vanuatu utilizes the conceptual elaboration of loss and damage under the UNFCCC; on the other hand, simultaneously, Vanuatu also questions the conceptual contour of loss and damage and aims to re-situate it under general international law.
These are the ways Vanuatu constructs its arguments before the ICJ. While we still don’t know what the ICJ will say, the way in which Vanuatu has actively pluralized the law-making process in loss and damage and climate reparations is notable in itself.
Arguably, how SIDS see the solution space for climate change is slightly different from the often-said dichotomy of negotiation and litigation. It is, in our view, better characterized as strategic problem-solving under a pluralistic legal order on climate change. Also, this socio-legal assessment of their strategy can inform the broader debate of the elusive search for legitimacy of global or transnational law, or continued “world-making” driven by the Global South. Climate change, and its sub-field of loss and damage and climate reparations, are apparently one of the hottest areas where such struggles and remaking are playing out, and we, international legal scholars, are tasked to continuously evaluate and strengthen the justness and legitimacy of pluralizing legal processes. Socio-legal understanding of the plural process will help us to unpack the transformative potential of these lawmaking initiatives.
Masako Ichihara
Masako Ichihara is JSPS Research Fellow and Visiting Researcher at Research Institute for Humanity and Nature, Japan. She holds Ph.D. in Global Environmental Studies and Juris Doctor.
Great Job Naoyuki Okano and Masako Ichihara & the Team @ Climate Law Blog Source link for sharing this story.
