Abstract

Excerpted From: Scott W. Stern, The Case for Climate Reparations, 128 Dickinson Law Review 529 (Winter, 2024) (174 Footnotes) (Full Document) (Book Review)

Reparations have been having a moment for the better part of a decade.

Inarguably, the renaissance began in 2014, with the publication of Ta-Nehisi Coates's article The Case for Reparations in The Atlantic. Reparations are owed to Black Americans, Coates argued, not just because of the centuries of slavery, but also because of the decades of debt peonage, exclusion, incarceration, and unrelenting violence that followed. The blockbuster article instantly triggered a flood of reactions. Some praised the idea, some mocked it, some dismissed it outright, but its greatest achievement was that “people have stopped laughing,” as Coates later told The New Yorker. The #BlackLives-Matter movement, which emerged around the same time, spurred further interest and urgency, and multiple commissions and coalitions quickly came together. In 2019, the House of Representatives held highly-publicized hearings on a (deeply flawed) reparations bill, prompting local legislative bodies to hold similar hearings across the country. A handful of American cities, including Evanston and Asheville, even created local reparations programs (though every single one of these remains drastically, terminally underfunded). In the summer of 2020, millions of Americans rose up in response to the racist police murders of George Floyd and others. Calls for reparations multiplied still further.

In the midst of this explosion of interest has arrived a flurry of new books on the subject. Of course, books on reparations have occupied shelves for decades, but the recent spate of publications is of a different order. In the last five years, seemingly one big reparations book after another has burst into the discourse. In 2019, for instance, law professor Katherine Franke wrote a slim but powerful text titled Repair: Redeeming the Promise of Abolition, using two case studies--the Sea Islands of South Carolina and Davis Bend, Mississippi--to chart the lost promise of land redistribution to Black people. In 2020, and then in slightly updated form in 2022, the scholars William A. Darity Jr. and A. Kirsten Mullen released From Here to Equality: Reparations for Black Americans in the Twenty-First Century, perhaps the most comprehensive argument in favor of reparations for Black Americans ever published. Other recent books have sought to place reparations in an international context, especially Reparations for Slavery and the Slave Trade: A Transnational and Comparative History by Ana Lucia Araujo (2017) and Time for Reparations: A Global Perspective, edited by Jacqueline Bhabha, Margareta Matache, and Caroline Elkins (2021). There have been spiritually grounded texts, such as Reparations: A Christian Call for Repentance and Repair by Duke L. Kwon and Gregory Thompson (2021), and calls for more directed forms of recompense, such as The Case for Gay Reparations by Omar G. Encarnación (2021). In the short time since this review was completed, two additional titles appeared: The Stolen Wealth of Slavery: A Case for Reparations by David Montero (2024) and Radical Reparations: Healing the Soul of a Nation by Marcus Anthony Hunter (2024). And all this says nothing of the considerable number of self-published books on the subject.

Yet two new titles have broadened the framework of reparations in a way that merits special attention. Although neither has yet been widely reviewed, both quietly herald a paradigm shift in the reparations discourse. The first, Reconsidering Reparations by Olúf<>mi O. Táíwò (2022), is a brief, bold call for reparations to directly reckon with the consequences of climate change. The second, The Long Land War: The Global Struggle for Occupancy Rights by Jo Guldi (2022), is a longue durée account of the fight for land redistribution in the 20th century. Placing these two books in conversation with one another allows us to see the historical and analytical building-blocks for the sturdiest possible case for reparations, a case that is responsive to the past, clear-eyed about the present, and even hopeful for a radical future.

Reconsidering Reparations is a work of breathtaking ambition. Its author, though still in his early thirties, is already a professor of philosophy at Georgetown, the writer of a much-discussed book about the “elite capture” of mainstream identity politics, and a genuine Twitter star. Reparations, to Táíwò, should be “neither a project of reconciliation nor redemption.” Rather, it is a project that must prioritize the “redistribution of global wealth, from the First World (back) to the Third World.” Drawing on the work of anticolonial activists, as well as recent scholars of their activism (most notably Adom Getachew), he envisages reparations as a “worldmaking project” and counsels that reparations cannot be a discrete, one-time transfer of wealth. The point is to “reshape” the entire global order, not merely “manage its consequences.”

A journalist profiling Táíwò in Grist called Reconsidering Reparations “a theory of everything for the social justice left.” Yet at the core of his worldmaking project is climate change. “It is not that every aspect of today's global racial empire is rooted in the impacts of climate change,” Táíwò writes. “But every aspect of tomorrow's global racial empire will be. Climate change is set not just to redistribute social advantages, but to do so in a way that compounds and locks in the distributional injustices we've inherited from history.” This unprecedented crisis therefore demands a total, global makeover.

The Long Land War is the kind of monograph that positively demands the descriptor “magisterial.” Its author is a polymath historian at Emory University (who left an enviable professorship at Brown University rather than quit her research on occupancy rights, as she'd been ordered). In her doorstopper of a book, she charts a remarkable, century-long struggle in which poor people sought to protect their homes through tactics as diverse as demonstrating, squatting, marching, mapping, and setting up ambitious new systems and structures of governance. The story of this struggle is the history of occupancy rights, which Guldi defines as “the right not to be evicted.” Occupancy is not the same as ownership, which legal philosophers dating back to Locke have defined as the right to exclude others. Occupancy is about staying.

The Long Land War is not about reparations or climate change, per se, but its implications for both subjects are direct and profound. Climate change will mean, among much else, an unthinkably immense refugee crisis; climate change will thus be about who controls the right to occupy land. In a world divided by fences and borders, guarded by men with guns, occupancy rights demand redistribution. And climate change is clearly at the heart of Guldi's project. The book opens with the author reflecting on her twelve-year-old self's “aching and often silent worry about our planet” taking hold in a Texas elementary school after she learned about global warming. It closes with an epilogue entitled, “Why Land Redistribution Matters in the Age of Climate Change.” There she contemplates many of the “techniques of occupancy,” cobbled together by poor people, separated by centuries and continents. Among the oldest of these techniques is reparations. “Reparations of land offer a way to break the cycle of violence associated with legacies of colonization and racial injustice.”

Of course, calls for reparations have been emanating from the Global South since long before scholars in the Global North started paying attention. Landless workers and the descendants of escaped slaves in Brazil have been demanding the return of land for decades; the First Pan-African Conference on Reparations was held in 1993, leading to the influential Abuja Proclamation; and multiple Caribbean nations have been officially calling for reparations since the mid-2000s. More recently, Burundi has made claims against Germany and Belgium; Jamaica has sought restitution from Britain; descendants of enslaved Guadeloupe agricultural laborers have sued France for control of their land; and residents of Louisiana's coast have demanded reparations from the oil companies that plundered their land. In late 2021, the German government agreed to pay more than a billion euros to Namibia for a colonial genocide perpetrated a century ago.

And, as the consequences of climate change have become more apparent, the idea of climate reparations has already migrated to the fore of many activist spaces. Reparations have become among the more contentious issues pushed by campaigners and even delegates at international climate summits, where the preferred euphemism is “loss and damage.” At the UN Climate Change Conference, held in Glasgow in 2021, the United States and European Union blocked an effort to create “a facility providing financial support to victims of climate disasters.” At the next conference, in Sharm-el-Sheikh, Egypt, in late 2022, wealthy countries finally acceded to a demand to create “a fund that would help poor, vulnerable countries cope with climate disasters made worse by the pollution spewed by wealthy nations,” though the details of this fund remained undetermined and the agreement specified that nations “cannot be held legally liable for payments.” The most recent conference, in Dubai in 2023, officially “launched” this fund, but so far wealthy countries have committed a tiny fraction of the funds actually needed by vulnerable nations--and have vehemently rejected the suggestion that such a fund creates legally enforceable obligations or amounts to “reparations.”

Legal scholars have begun to contend with climate reparations, though there is hardly a robust body of literature on the matter. Perhaps most notably, Maxine Burkett has been arguing powerfully for climate reparations for well over a decade. Much of the existing work within the legal literature has understandably concerned the needs of those displaced by climate change, which has dovetailed with recent scholarship demonstrating the intellectual indefensibility of borders. In an era certain to be marked by hundreds of millions of climate refugees, many have come to see borders as outdated and deeply harmful. In an influential 2019 article, Migration as Decolonization, E. Tendayi Achiume argued that former colonial powers have an obligation to open their borders to former colonial subjects. Another legal scholar, Carmen G. Gonzalez, made a similar argument specifically with respect to climate refugees in a 2020 article, Migration as Reparation.

The goal of this review is twofold. First, it seeks to advance a brief but rigorous case for climate reparations. Second, it aims to broaden legal discussions of climate reparations by placing the subject in direct conversation with the histories of land enclosure, seizure, and privatization. It attempts to do this by reading two seemingly disparate books alongside one another: Reconsidering Reparations and The Long Land War. It is revealing that two such different books ultimately end with the same prescription--that a massive reordering of the world order is perhaps the only thing that can save it. One might call this reordering “reparations.” One might call it “revolution.” One might even call it (as these writers do not) communism. But it is an idea with which all conversations about reparations or climate change must contend.

This review proceeds in five parts. Part I recounts a capsule history of global empire and racial capitalism--a history, that is, of property. Part II considers what, exactly, the victims of this history are owed. Part III shows where, then, climate change enters the picture. Part IV articulates what, specifically, climate reparations would look like. And Part V contemplates how this all might happen.

[. . .]

And how, exactly, might all this happen? How can climate reparations be translated from an academic theory or a cry of activists into concrete policy?

Guldi envisions a “democratic ecology movement”--women and men, rural and urban, students and workers, of all races and classes, marching for “food, shelter, and water for all.” That is, in fact, the story of the fight for occupancy rights, she continues, and the march goes on. Táíwò likewise imagines a solidaristic approach, including unions uniting with community organizations to press corporations and states for concessions that benefit entire communities. From pushing local climate initiatives to making global demands of multinational corporations, a broad-based approach is essential.

Inherent in such an approach is the need for allies. As Ian Hancock's brilliant essay in Time for Reparations emphasizes, the German reparations paid to Jews after the Holocaust are rightly celebrated, but the Germans have never paid significant reparations to the descendants of the European Roma, some 70 percent of whom were exterminated by the Nazis. Indeed, prominent Jewish advocates even fought against the inclusion of Romani claims to reparations, worried such demands would water down their own. The rejoinder to such thinking is the exhortation that formed the moral core of Bernie Sanders's run for U.S. president: be willing to fight for someone you don't know.

The question remains, however, whether any of this will be sufficient to remake a centuries-old global order. As the climate journalist Jake Bittle recently emphasized in a challenging piece in The Drift, green capitalism is ascendant and likely here to stay. At the very least, those of us opposed to capitalism (or even just its excesses) must contend with its resiliency and its ability to seduce. It is this state of affairs that has led some, including the historian Andreas Malm, to call for “another stage” in the climate movement “beyond absolute non-violence.”

“At what point do we escalate?” Malm wrote in his recent book, How to Blow Up a Pipeline. “When do we conclude that the time has come to also try something different? When do we start physically attacking the things that consume our planet and destroy them with our own hands?”

There is a violence inherent in redistribution with which Táíwò, Guldi, and the other scholars of reparations seem reluctant to engage fully. Táíwò threads throughout his narrative the story of an 1835 slave revolt, but his list of “tactics” for accomplishing “just world-making” is notably shorn of any of those actually employed by the Malê rebels he invokes as parable. Guldi focuses the bulk of her study on the administrators of the FAO and the activist-scholars on whom the FAO relied, covering too quickly the bloodier fights for land redistribution in China, Mexico, and Soviet Russia.

Revolutions can be nonviolent, of course. A few years ago, millions of Chileans took to the streets and successfully demanded a special plebiscite, in which massive majorities ultimately voted to enshrine a wholly new constitution (though progress on ratifying a specific document has stalled). Still, even nonviolent revolutions generally depend on implicit or explicit threats of what James Baldwin called “the fire next time.”

All fires need room to burn. The challenges of battling planetary injustice cannot be allowed to result in an approach so careful or restricted that it morphs into minimalism. “The colonizers and conquerors of the world, from the US southern planter aristocracy to the Third Reich, have never been confused about the scale of their ambitions for injustice,” Táíwò writes. “It's time they met their match.”

If all this sounds like a bit much, that's because it is. Of course it is--it would have to be. Reparations simply are not imaginable within the context of capitalism-as-usual. To truly repair our broken world, we must break it wide open.

J.D., Yale Law School, 2020; B.A., M.A., Yale University, 2015.