Abstract

Excerpted From: Randy Goldson, In Between the Global North-South Divide: Reassessing Climate Reparations as a State-State Transaction, 38 Temple International and Comparative Law Journal 113 (Fall, 2023) (381 Footnotes) (Full Document)

Our planet faces unprecedented destruction due to climate change. Rising sea levels, rising ocean temperatures, disappearing coastlines, melting polar ice caps, increasing desertification, and intensifying storms reveal the danger of human- induced climate change. The loss of lives, livelihoods, and livable spaces further compound the ecological problems that climate change presents. Although the existential threat alone is overwhelming, the climate crisis raises significant legal and moral concerns. Chief among these legal and ethical concerns is how to apportion responsibility among polluters and determine appropriate remedies for the ongoing climate change-related harms.

Scholars and climate activists have noted the climate justice paradox which underlines the moral and legal concerns: the countries that contribute the least to climate change and have the fewest resources face the most significant impacts of the climate crisis. In analyzing this situation, scholars who ground their work in Third World Approaches to International Law (TWAIL) argue that a global racial capitalist framework structures the climate paradox. Wealthy industrialized countries, the majority of which are former colonizing powers, contribute the most to climate change by emitting the most greenhouse gases (GHG). At the same time, the formerly colonized countries--whose GHG emissions are inconsequential compared to the major polluters--are facing the worst impacts of the climate crisis. The disparity in GHG emissions as the primary cause of climate change reflects the asymmetric power relation between the Global North and South, which is fundamentally a consequence of colonialism and racial capitalism. The link between the asymmetry in the effects of climate change and colonialism and capitalism is less straightforward partly because the geographic locations and economic situations of countries in the Global South make them less resilient to the impacts of climate change. But biophysical and economic situatedness should not lead to the essentialist conclusion that these climate vulnerable countries are inherently vulnerable nor should it erase the historical reasons for their difficulties in dealing with climate change. As this Comment makes clear, colonialism and capitalism are compounding factors, resulting in poorer, formerly colonized nation-states disproportionately bearing the brunt of climate change.

Noting the inadequacy of legal remedies and the unwillingness of developed nations to take responsibility for their role in creating and worsening the climate change crisis, several theorists and activists propose a legal theory of climate reparations. It functions as an organizing principle for the nation-states most vulnerable to the adverse effects of climate change. Climate reparations typically mean that the Global North should compensate the Global South for the climate change-related harm they cause (or will continue to cause) due to excessive GHG emissions. It is a system of acknowledgment, compensation, and assurance of non-repetition of harm. In this sense, climate reparation is both backward and forward looking. It seeks to promote accountability and equity within the global community insofar as the most responsible nations bear the cost of mitigating and repairing the harms of anthropogenic climate change.

However, like the TWAIL perspectives on international environmental law and climate change, the discourse on climate reparations tends to follow the Global North-South binary. While this traditional geopolitical divide has helped to bring attention to the impact of colonialism and capitalism, it is less helpful in dealing with the interstitial nature of post-colonial realities. Centering the climate reparations discourse on the Global North-South framework reinscribes the racial hierarchies of the Westphalian model of international law, which TWAIL theorists seek to problematize in the first place. The predominant framing of climate reparations as the responsibility of the Global North to the Global South focuses exclusively on nation-states as the most appropriate recipients of climate reparations. The assumption that climate reparation under international law is a state-state dialogue tends to foreclose the possibility for Indigenous and other self-determining peoples to have a legitimate seat at the table.

This Comment builds on some recent trajectories in TWAIL scholarship by further complicating the model of Global North and Global South nation-states as the dominant voices in the climate reparations discourse by presenting a people-centered model of climate reparations. A people-centered model incorporates Indigenous peoples and their rights to inform the demand for and implementation of a climate reparations regime. The Comment contends that a more nuanced idea of who is entitled to reparations, and from whom, emerges by shifting attention from the nation-state as the principal actor in climate reparations discourse and transaction. This analytical shift opens the possibility for intra-state transfer of resources, wealth, and technology even within countries traditionally regarded as part of the Global South.

Part II provides a brief history of TWAIL and the environment. It examines the traditional assumptions underlying TWAIL scholarship and its criticism of international law's perpetuation of structural hierarchies based on power, capital, and race within the global community. It also outlines the development of TWAIL analysis of international environmental law. Part III discusses the emergence of international climate finance, the limitations of the climate finance framework, and why climate reparations are still relevant to climate action. Part IV outlines a history of reparations in international environmental law and discusses TWAIL's predominant state-centric model of climate reparations.

Part V discusses practical and epistemic limitations of analyzing the climate crisis and formulating climate reparations within the traditional TWAIL state-centered framework of the North-South divide. It discusses the limits of international law in conceptualizing spaces and peoples that do not fit neatly within the conventional geopolitical categories of the “Global North/South” and the “Third World.” Part VI deals with emerging trends in TWAIL scholarship on climate justice that seek to move beyond the traditional North-South divide. These new trajectories in TWAIL scholarship provide the theoretical basis for conceptualizing a people-centered approach to climate reparations. Finally, Part VII proposes a people-centered approach to climate reparations using the experience of Indigenous communities to illustrate a people-centered climate reparative regime and focusing on vertical and diagonal flows of reparations.

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The demand for climate reparations is a bold and necessary step in addressing the uneven burden of climate change. The wealthiest countries are the major GHG emitters, but they are the least vulnerable to the devastating impacts of climate change. TWAIL scholars theorize a reparatory demand for climate as the obligation of countries in the Global North to the Global South. They have shown that the impacts of climate change cannot be severed from the history of European colonization and plunder. While the predominant state-centered, North-South formulation of climate reparations has value, this Comment has shown that the nation-state cannot be the exclusive recipient of climate reparations.

Indigenous peoples and other self-determining people within and across nation-states experience a double burden of climate change. Their history of marginalization increases their climate vulnerability. The proposed people-centered climate reparations model provides a theoretical basis for these communities to receive reparations payments directly from the developed nations that have caused the climate crisis. It also allows them to receive climate reparations from the countries in which they live. The multidirectional flow of reparations allows accountability for historical emissions, but it also provides resources that will enable people who are often overlooked by international law to take on climate change at the community level.

J.D. Candidate, Temple University Beasley School of Law, 2024; Ph.D., Religion, Temple University, 2020