Abstract
We are already witnessing climate-induced migration and thus must prepare to address the next decades of even more human mobility as a consequence of the climate disruption crisis. Fifty years after the Stockholm Conference, international environmental law still needs solutions to protect those persons most vulnerable to environmental harm. This paper seeks to focus on the concept of reparative justice as the theme and attitude of legal solutions, so as to refocus legal tools to provide relief to those persons who are displaced and dispossessed because of the climate disruption crisis. In this paper, we present possibilities for a reparative climate justice regime that could help to break the current cycle of harm and denial in which states are currently embroiled within international climate negotiations. This focus considers how careful solutions such as credit within the financial mechanisms under the Paris Agreement, in a spirit of trust and solidarity, could contribute to legal solutions to climate migration problems. The paper first iterates the scope and history of climate-induced migration in international law and then presents the case for reparations as a strong legal response to climate-induced migration, before finally exploring the legal avenues within international climate law wherein reparative justice and financing could potentially operate.
Keywords
Introduction
When international law and domestic law consider migration that is induced by the climate disruption crisis, they often focus upon rapid-onset events such as hurricanes, tsunami and floods. But because migration is increasingly more often caused by slow-onset events, 1 it becomes important for the international legal community also to ease the slow-onset consequences of climate-induced migration. When including slow-onset climate disruption consequences, we have the opportunity to address the related problem of how one characterizes the remedies. In view of worsening of the global climatic patterns and other environmental changes, the “potential” 2 for environmentally induced migrants (refugees) has grown enormously. To date, migrants have been characterized not as injured persons or victims of legal wrongs, but rather as charity cases for compensation. Thus, it is time to look at the migrants in light of the causes of their migration, and focus instead on reparations. By characterizing the legal solution as reparations rather than as charitable compensation, the remedies will not only serve to correct historic wrongs, but also forge better relations among parties, and act as a trust-building process with demonstrated solidarity. 3
At the 26th session of the Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC) in Glasgow (COP26), developing countries continued to demand the mobilization of additional finance for loss and damage and expressed “extreme disappointment” that no clear plan for the future funding of losses and damages has been agreed. 4 Climate migration already featured prominently in the Cancun Adaptation Framework (2010) and the Paris Agreement (2015), along with being squarely within the scope of the Warsaw Mechanism for Loss and Damage (2013). A practical start to addressing this extreme disappointment would be to integrate the concept of reparative climate justice into these legal agreements and thereby address climate-induced migration. This approach may then also relieve the mitigation gridlock that has developed and reduce animosity among the parties by providing a path from which to pursue the issues at the next UNFCCC COP in Sharm El-Sheik, Egypt.
Reparation in international law is not a novel concept, and is prominently featured for example, in international criminal law under the Rome Statute of the International Criminal Court 5 adopted by the United Nations General Assembly within the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation. 6 Among other prominent sources, the concept of “reparation” is also contained within the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts. 7 In these instances, the responsibility of states has been considered mostly in the context of harm done during war and armed conflicts, but recently it also has gained traction in the context of post-colonial reparations. Consequently, one can connect the post-colonial reparations to climate reparations, given that the colonization enterprise was an industrial project that altered our climate cycle, and climate-related harms are disproportionately greater in previously colonized nations. 8 In these contexts, vulnerable persons should be able to migrate to safety not only for disaster-driven rehabilitation, but should also receive restitution and reparative justice from states that have most benefited from their own activities, including the slow-onset harms caused by climate disruption. Finally, instead of focusing on relief or charitable aid to ameliorate climate disruption harms, we focus on building a regime of long-term reparation for climate migration caused by slow-onset events. 9 .
Climate-induced migration in international law
The record of history indicates that when it comes to human-environment interaction, humans are contentedly slow to act in preventing catastrophes and prefer rather to react after consequences have been suffered. Like the patient who assumes a doctor with medicine and machines can reverse the patient’s years of unhealthy lifestyle, we base our contentment on the faulty assumption that all harms, including climate disruption, are reversible. If one traces how the concerns of migrants have been made explicit in the UNFCCC, the Kyoto Protocol and the Paris Agreement, as well as in the assessment reports by the IPCC, one will note that the discussion’s focus has shifted from mitigation supplemented by adaptation, to adaptation supplemented by resilience. Once resigned to our unwillingness to mitigate climate disruption, we must face consequences, one of which is the necessary migration of human populations. Moreover, within this migration consequence, it is rather clear that the most vulnerable populations to climate disruption are found in the least economically-developed places, so when they do migrate, they will of necessity be migrating to more economically-developed places. Simply put, a consequence of having failed to mitigate climate disruption is that when there are no longer habitable poor places, the poor will need to join the wealthy.
Consistent with, and running parallel to the failure to mitigate climate disruption, one finds the failure to provide for climate migrants. In 1985, Essam El-Hinnawi introduced the topic of climate-induced migration in the United Nations Environment Programme publication “Environmental Refugees”. Yet even in that publication, when El-Hinnawi listed causes for migration, he included natural disasters, land degradation and environmental accidents, but did not explicitly mention climate change. 10 Then in 1988, Jodi L. Jacobsen went a little further by adding the potential effects of sea level rise because of human-induced changes in the earth’s climate to the environmental refugee discussion. 11 In 1990, the Intergovernmental Panel on Climate Change (IPCC) confirmed that sea-level rise could lead to significant movements of people. 12 Yet still then, international law did not provide explicit protection for environmental migrants.
Delaying relief while waiting to define “environmental refugee”
Similar to what we have seen with the concept of “terrorism,” the international legal community remains fixated on the sophomoric distraction of definition when it comes to the concept of “refugee.” In his “Environmental Refugees,” 13 El-Hinnawi defined the term “environmental refugees” as “those people who have been forced to leave their original habitat, temporarily or permanently, because of a marked environmental disruption (natural and/or triggered by people) that jeopardized and/or seriously affected the quality of their life.” 14 Other attempts of working definitions of related terms have been made since then. The International Organization for Migration (IOM), for instance, defines “environmental migrants” as “[\dots] persons or groups of persons who, for reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged to have to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their territory or abroad.” 15 The German Federal Environment Agency has analyzed most existing definitions of the term and came up with another working definition that includes “Citizens and persons with habitual residence who, temporarily or permanently, have had to leave their place of origin within their country of origin, or who have had to leave their country of origin, and for whom the relevant, immediate reason for leaving is man-made or natural environmental changes that seriously endanger life or livelihood.” 16
As the term “refugee” is restricted to politics by extant definitions in international law, connecting “refugee” to the environment or climate may create unnecessary restrictions. 17 Therefore, in the following, we will most often use the term “environmental migrant” as suggested by IOM, the leading intergovernmental organization in the field of migration, established in 1951. 18 Unlike the other two definitions, the IOM includes both forced and voluntary migration. Even though “climate crisis,” “climate disruption” or even “climate change” are not explicitly part of the IOM’s “changes in the environment” language, we see climate change as the initiator of “changes in the environment” and therefore include it under the term “environmental migrants”.
The scope for the “environmental refugee” in international law
The most important document and “centrepiece of international refugee protection” 19 is the Convention and Protocol Relating to the Status of Refugees from 1951 and 1967. 20 One must consider the historical background of the Convention in order to fully grasp its scope and primary purpose. Explained by the Introductory Note to the Convention “[t]he 1951 Convention, as a post-Second World War instrument, was originally limited in scope to persons fleeing events occurring before 1 January and within Europe. The 1967 Protocol removed these limitations and thus gave the Convention universal coverage.” 21 . Both documents are designed to give individuals who suffer serious human rights violations additional protection by the international community when the home government refuses or is unable to provide such protection. 22 It therefore regulates the tension between human rights and state sovereignty for its parties and sets general legal principles for the treatment of refugees for the first time. 23 The Convention defines a refugee as “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” 24 The Convention’s definition does not include people who must leave their place of residence because of climate or environmental changes. When the Convention was in the making, the Parties deliberately avoided including natural disasters and environmental problems in the refugee definition, since in the case of floods, earthquakes or volcanic eruptions, fleeing is not based on nationality, religion, or political opinion. 25
By comparing the Refugee Convention definition with, for example, El-Hinnawi’s definition, it can be seen that “environmental migrant” is broader and would not fall within the scope of the Refugee Convention’s definition. Although this means that environmental migrants would not generally be protected by the convention, 26 there are some exceptions to the limited interpretation.
To fulfill the requirements of the Refugee Convention’s definition, the person needs both to reside outside the home country or country of origin and to have a well-founded fear of being persecuted in his or her home country or country of origin for one of the reasons named in the definition. 27 Environmental migrants may not be able to fulfill even the first requirement that a person has left his or her home country, because the convention does not apply to internally displaced persons but only people actually crossing a border. 28 This is especially unhelpful to environmental migrants because the majority of people fleeing from climate and environmental disasters actually do stay within the borders of their home country. 29
Secondly, in order for the Refugee Convention to protect a person, he or she must demonstrate a “well-founded fear” of being persecuted for one of the named reasons. Therefore, one must ask is whether an environmental disaster can be grounds for a “well-founded fear.” To answer that question, “the Convention refugee definition requires only the demonstration of “fear” in the sense of a forward-looking expectation of risk.” 30 A forward-looking expectation of risk can easily be seen in rapid-onset environmental catastrophes, 31 but that brings us to the other essential notion to understanding climate migration: whether the requirement can also be fulfilled with slow-onset events. A further question to be answered is whether the environmental migrant must have suffered persecution for one of the reasons named in the definition. After review of the application of the Convention, Anja Meutsch suggests that a government act must have taken place in order for any act to be characterized as “persecution.” 32 .
Government decisions and government measures that affect the quality of the environment could be interpreted as such. When the government of the home country does not prevent, stop, combat, or mitigate the environmental damage, or the governments of developed countries load most greenhouse gases into the atmosphere, either could be held responsible for the aforementioned persecution. 33 . But while thinking only within this context of persecution, it would be difficult to attribute the effects of anthropogenic climate change to persecutors not present in the territory where the persecution is taking place. This exposes the fact that there are at least two elements of environmental harm that are impossible to liken to political persecutions. First, the causal connection between the person doing the harm and the person suffering the harm is not direct in the case of environmental harms. Second, and in large part because of the indirect causal connection, environmental harms do not follow political boundaries. Therefore, the underlying notion that the status of a migrant must be conditioned upon state-associated location is inapposite. Because the case of the environmental migrant does not fall under the general protection of the convention, 34 it can be concluded that only under very narrow requirements and exceptional situations can environmental migrants be protected by the Convention. 35
This result is unsatisfactory already now; it certainly will not be enough in the future. The variety of definitions presented above, as well as the unhelpful association of environment-induced migration with political borders make it difficult both to characterize and to record persons as environmental migrants. 36 for an overview of different estimates on environmental refugees in a chronological order. Consequently, the exact number of environmental migrants has not been clearly estimated. Even the World Migration Report of 2011 by the IOM gives only an estimate of the number of migrants as a result of natural disasters in rapid-onset events like storms, floods and earthquakes, and does not include the victims of slow-onset events. 37 .
As of today, no one definition for the term environmental migrant is uniformly accepted by the majority of states and institutions of the world. 38 Restricted by definitions, the extant law fails to provide relief, but why should we be so restricted by definitions? To broaden the scope of conclusion, one must of course not endanger or weaken the Convention’s general status and scope amongst the Parties. 39 But in fact, all this delay and avoidance while waiting for a universally-agreed definition is unnecessary, as is illustrated for example by the 1965 United States Supreme Court case of Jacobellis v. Ohio. In that case, Justice Potter Stewart wrote a statement that more accurately presents the creation of meaning in language than simple definition. In reviewing whether a film was pornographic, he wrote:
“I have reached the conclusion . . . that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” 40
We know that we are seeing real people with real lives who must migrate due to climate disruption. If a constitution can function without waiting for a definition of pornography, international law can function without waiting for a definition while migrants suffer.
Waiting for this “Godot” of definition is not only due to lethargy; it also serves to benefit those who enjoy the status quo ante. The argument that we will do nothing new or different until we define terms reveals a stalling tactic. But the tactic only has traction due to attitudes toward language that are uninformed by linguistic science and instead rely upon legal fictions pursuing mathematical precision through definition in language. 41 Solutions do not lie in finding definitions but rather in thinking about effective legal solutions to the problems from the perspective of environmental migrants and about acting as quickly as possible. Time spent arguing about the correct term for people who are fleeing from climate disruption and other environmental disasters blocks progress on the social issues. Whether such persons should be called “climate refugees,” “environmental refugees,” “ecological refugees,” “environmentally displaced persons,” or something else altogether, continues as an academic discussion while real people suffer climate disruption and must move from their homes and sometimes move from their own countries. 42 The questions therefore are how the environmental migrants are protected by already existing international law and whether there are solutions possible within the notions of loss and damage on one hand and reparations on the other.
Why Reparations?
Scholars have suggested both strong and mild solutions for problems faced by environmental migrants. A strong solution, for example, would provide a right to free movement for all asylum seekers without distinguishing between the ones seeking asylum due to climate disruption and the ones seeking asylum for other reasons. An advantage of this proposal is that it need not attempt the impossible task of differentiating among the groups of asylum seekers whom parties would need to consider in some new agreement, but rather needs only to acknowledge all asylum seekers under a non-refoulement principle.
A mild solution for example, would be to establish designated vulnerable zones. Asylum seekers coming from designated zones could be granted a temporary or permanent status more easily. 43
But whether the solution is strong or mild, a refocus on the solution from the position of the migrant is essential. To date, the international regime too often treats environmental migrants as charity cases, when in fact other identifiable individuals, organizations or states have harmed them. For a system to call itself “justice,” the law must provide more than anonymous charitable donations. As we have learned in international criminal law, for example, from the perspective of the victim, reconciliation and consultation are extremely important socio-psychological factors that must be addressed, if the harmed persons are to come out at the other end of the legal process through justice, rather than charity.
Therefore, the following three possible solutions are offered, beginning with tools and concepts already known and in use. We call the first “reparation through compensation”. The second solution is also based upon extant reparation practices, but so far, they are limited to domestic rights exercised within particular states. When the rights-based approach is extended to international migration, the migrant would be given a say in choosing the type of compensation to accept, and if the compensation is relocation, then the migrant would also have some say in his or her new home location. The third solution is a reparations regime that has no track record in practice to date, but can be regarded as a framework guide. In the reparations regime, a slow-onset catastrophe, such as desertification or increased flooding, would not only be compensated just as a rapid-onset catastrophe is compensated, but the compensation would be tied both to the needs of the harmed persons and to the persons, organizations or states responsible for the harm.
Reparation through Compensation
To introduce this solution to the problem of environmental migration, we begin with the simple legal observation that both in international private law and in most domestic legal systems, harm caused to a person by another person’s negligence is actionable. Furthermore, when the harm was caused by an intentional act, it is even more likely to be legally actionable. When we apply those basic notions to climate actions, we note that responsible parties have so far largely avoided liability for harms they have caused by climate disruption. Liable parties have successfully asserted a lack of standing by the complainant, a lack of causal connection between the harmful acts and the harm caused, or an inability to identify the legal person who caused the harm. The causal connections can however now be made, 44 the barrier of standing is noticeably diminishing, and the liable parties can now be identified.
The USA, as a large emitter of greenhouse gases, provides a useful example. There, in previous asbestos and tobacco litigation, the same legal hurdles were erected, but they have been largely solved through the legal liability tool called “market share liability”. 45 In the case of tobacco litigation, the legal tool was publicly more acceptable after it had been shown that the tobacco industry knowingly made their harmful product more addictive so as to increase sales after it had been proven to be harmful. At least one US state has now considered even criminal liability for the tobacco industry because of this intentional, “reprehensible” behavior. 46 It is clear that a market share of the harmful practice is a known and used legal tool, and is a known and used legal tool in one of the principal emitting states— the USA.
Moreover, the legal culture of the USA has also demonstrated that when harms are knowingly delivered to the public, as was proven in tobacco litigation, then that same public is more willing to assess liability. The original claim by the fossil fuel industries and sometimes even the US administration itself was that anthropogenic climate change had not been sufficiently scientifically proven. That claim has proven to have been a delay tactic while the state and fossil fuel interests calculated the economic loss of their cheap energy structure compared to the loss suffered by others due to greenhouse gas emissions. 47
At present, when discussing human mobility within the UNFCCC and Paris Agreement, if loss and damage are discussed at all, then the narrative overwhelmingly focuses on financial flows to address loss and damage, but it does not extend to discussion of justice that are necessary to establish trust. Rather than presenting a regime of reparative justice, the narratives present a principled compensation regime for loss and damage that entirely sidesteps the question of obligations and liability of developed country parties. Despite the recent progress seen through the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (WIM), and the anticipated development regarding loss and damage foreseen for COP27 in Egypt in 2022, developed nations are unwilling to engage genuinely on the issue of human mobility due to several countries seeing the rise of the political right and its illiberal stance on immigration in the domestic sphere, thereby compromising political will in this regard. 48 Even with a market share liability concept, states are of course reluctant to admit to any liability. Therefore, it is important to turn to another tool, already existing and accepted as common practice in this same US legal culture–compensation without admission of liability.
When it comes to public environmental harms, it is accepted and common practice in the USA for the several states and the federal government to allow violators of environmental statutes to settle cases brought against them by entering into settlement agreements in which the violator agrees to pay civil penalties and make restoration, without admitting to violations of law.
In India, under the Code of Civil Procedure, 1908 (CPC), if the civil courts find that Parties may be amicable to a mutually agreeable settlement, the courts can “formulate the terms of settlement” and refer the parties to alternate dispute resolution including mediation, judicial settlement, arbitration and conciliation. 49 This is important, given that the National Green Tribunal, which has jurisdiction over disputes involving a substantial question of the environment, follows the procedural rules under the CPC. 50
Thus, one might well ask, if it is already part of the legal culture to make restoration and pay penalties domestically without needing to admit liability, why can the same not be done for damage to other states or their citizens by climate disruption? By comparison, when it came to eliminating sulfur dioxide (SO2) from the atmosphere to stop acid rain, the USA was able to establish an allowance-trading program under Title IV of the 1990 Clean Air Act Amendments as the world’s first large-scale pollutant cap-and-trade system. Built on that success, the USA introduced the notion of the carbon emissions trading “flexibility mechanism” to international discussions that resulted in the Kyoto Protocol to the UNFCCC. 51 Thus, even if paying damages for loss is still objectionable to states for fear of opening a Pandora’s box of liability, in legal cultures that accept settlement without an admission of liability, it should not be objectionable, for example, to give “climate asylum” to those persons forced to leave their homes due to climate disruption. As with domestic public law actions in the US for violations of pollution statutes, states with high emissions of greenhouse gases could settle claims of climate liability with developing states by agreeing to accept environmental migrants without having to admit liability. In so doing, the migrants at least have a place to go and the emitting states can take ethically responsible action without costly admissions of liability. In addition, there would be no “leakage” of aid money paid to states or organizations that never makes its way to the harmed persons who need and deserve it. And finally, the relocation of migrants as reparation will in fact be necessary, even when responsible states are looking for the easiest alternative, as the alternative to aid begins to be demanded from wealthy states, rather than developing states, who are also suffering from climate disruption, and where rebuilding infrastructure and agriculture or reclaiming the sea will be prohibitively expensive for the high emitting states to compensate.
Rights-Based Claims v. Reparations-Based Regime
A different solution to problems of environmental migration can be achieved through rights-based claims. Among the strong solutions, some of the most progressive authors in the field have argued for a “right to freely immigrate” for those people displaced by climate change, exercised through a universal passport and based on a claim to common ownership of earth. Like reparation through compensation, the rights-based claim is based upon tools already in practice. In addition, rights-based claims also shift the focus of the legal remedy to the harmed persons, but they do not achieve the goals of a reparative claim for injustice and wrongs. 52 A reparative goal could include, for example, a duty for offending states to cede territory to vulnerable states or communities who have been displaced by climate change, with the former having an obligation to restore the status quo ante for those displaced, not simply pay compensation. 53 The potential to seek such reparations within the fabric of public international law will likely inform future negotiations and litigation to seek and express solidarity with those displaced by climate change. 54 Building trust and solidarity between parties is essential to remedy the disproportionate harm caused by climate-induced migration. “The suffering that is resulting from climate change has been uneven, the indirect violence and trauma of overconsumption and unjust enrichment have been borne by many for the benefit of a privileged few . . . ”. 55
Reparations-Based Legal Regime on Human Mobility
The third possible solution is not based upon tools already in practice, but most perfectly expresses the goals of a reparations-based regime. To do so, Rebecca Buxton insists upon a transition from a language of compensation that seeks to remedy unintentional or accidental damages, to a language of reparations that focuses on the rectification of injustice. After all, compensation can be offered and paid by anyone, but the reparations must necessarily be paid for by the entity responsible for the harm. 56
If implemented, the concept of reparation rather than that of compensation would ensure that we do not frame climate-induced migration as being an inevitable and anticipated part of climate adaptation, but as a wrong that has been committed against vulnerable populations who contributed little to the cause of their own displacement. Communities often wish to live and prosper for generations in the place where they have historical ties. 57 Migration robs communities of their livelihoods, family life, community, self-determination, 58 and history, and these wrongs must be acknowledged as legal wrongs, as opposed to inevitable harms for which they will receive monetary compensation. This can also lead to institutions that are based on accountability, away from current structures which have historically protected perpetrators of climate injustice. 59 Fostering solidarities, a concept with origins in feminist climate justice, is also important to redress resentment and animosity among communities facing disproportionate climate disruption impacts. 60
UNFCCC: Potential for Reparative Justice for Migration
As instruments of international law, the UNFCCC and the Paris Agreement have become the primary locus wherein nations declare and report on their commitments to climate change mitigation, adaptation, and finance. Within the texts of their decisions, particularly those decisions addressing loss and damage within the UNFCCC regime, Parties to the UNFCCC and the Paris Agreement have repeatedly agreed on language that can support a progressive reparations agenda, especially regarding migration.
In its second meeting, the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA) recognized “the urgency of enhancing the mobilization of action and support, including finance, technology and capacity-building, for developing countries that are particularly vulnerable to the adverse effects of climate change for averting, minimizing and addressing loss and damage associated with the adverse effects of climate change.” 61 The CMA also urged that parties increase their action including increasing financial support “for developing countries that are particularly vulnerable to the adverse effects of climate change for averting, minimizing and addressing loss and damage associated with the adverse effects of climate change.” 62 The CMA also invited Parties to “make use of available support relevant for averting, minimizing and addressing impacts related to extreme weather events, slow onset events, non-economic losses and human mobility and for comprehensive risk management from a wide variety of sources, public and private, domestic bilateral and multilateral, under and outside the Convention and the Paris Agreement, including through the operating entities of the Financial Mechanism...”. 63 This explicit invitation by Parties to explore avenues within and beyond the UNFCCC and the Paris Agreement addresses impacts of slow-onset events while particularly mentioning non-economic losses and human mobility, and is crucial to reparative climate justice for migrants. While Parties avoided terms such as “environmental migration,” “climate migration” or “environmental refugees,” the emphasis on addressing human mobility, and the invitation to consider multiple avenues within international law to address human mobility serve as clear indications of Parties’ interest in pursuing the question of climate-induced migration.
Human mobility has also featured strongly in the work of the Executive Committee of the WIM and with the UNFCCC COP repeatedly encouraging parties to disseminate and promote the work of the WIM by including “consideration of extreme weather events and slow onset events, non-economic losses, climate change impacts on human mobility, including migration, displacement and planned relocation, and comprehensive risk management into relevant policy, planning and action . . . .” 64 Human mobility has featured strongly in the work of the Executive Committee of the WIM with the Parties to the UNFCCC encouraging the Executive Committee to “continue its work on human mobility,” especially “enhanced cooperation and facilitation in relation to human mobility, including migration, displacement and planned relocation.” 65
In its report adopted by the UNFCCC COP in 2018, the WIM Executive Committee invited parties to “facilitate orderly, safe, regular and responsible migration and mobility of people” with respect to climate change, “by considering the needs of migrants and displaced persons, communities of origin, transit and destination, and by enhancing opportunities for regular migration pathways, including through labor mobility, consistent with international labor standards, as appropriate.” It is important to note that human mobility in the climate change context is both internal and cross-border. 66
The COP also invited United Nations agencies and other relevant organizations “to continue supporting efforts, including finance, technology and capacity-building, of Parties and other actors, including with and for communities and local actors, in order to avert, minimize and address displacement related to the adverse impacts of climate change.” 67
Role of Green Climate Fund and Adaptation Fund
The CMA in 2019 also invited the Board of the Green Climate Fund to “continue providing financial resources for activities relevant to averting, minimizing and addressing loss and damage in developing country Parties” while taking into account the work stream of the WIM’s Executive Committee, which includes the previously mentioned strategic work stream on human mobility. 68 The UNFCCC COP and CMA have continued to emphasize the importance of developed countries making available funds for developing country Parties; particularly the Least Developed Countries. The Global Environmental Facility (GEF), which is the operating entity for the financial mechanism of the UNFCCC, is uniquely positioned to address the question of providing finance for human mobility. The GEF could collect and disburse funds not only to pay compensation to communities or Parties that have suffered loss and damage, but to facilitate climate reparations paid by the largest consumers of the carbon budget to those persons suffering from immediate consequences of climate change, including migrants.
In addition, the Adaptation Fund, which was originally established under the Kyoto Protocol, funds project activities related to adaptation using a share of proceeds from the Clean Development Mechanism. 69 In 2018, Parties to the Paris Agreement decided that the Adaptation Fund “shall exclusively serve the Paris Agreement once the share of proceeds under Article 6, paragraph 4, of the Paris Agreement becomes available.” 70 In its current form, the Adaptation Fund also accepts donations from private donors “to help vulnerable communities in developing countries adapt and build resilience to climate change.” 71
If the idea of climate reparations were truly to gain traction within the UNFCCC and WIM processes, the GEF and Adaptation Fund possess the necessary institutional infrastructure to undertake the procedures of such a legal development. They can work together with other UN agencies such as the United Nations Compensation Commission (UNCC) with existing expertise in similar finance delivery. With the help of sophisticated decision-making tools, the UNCC has successfully processed and paid claims from the second Gulf War, when acting as a subsidiary for the UN Security Council. This expertise can be redirected to address claims due to slow-onset events and climate-induced migration, and to decide on valuation in case of remedies. 72
Lessons from the Trust Fund for Victims of the ICC
In order to further the case for reparative justice within the UNFCCC and Paris Agreement, one is not limited to hypothetical possibilities within the structures of GEF or the Adaptation Fund. The Trust Fund for Victims of the ICC (TFV) 73 offers a real example of how a trust fund based on reparative justice can function. As discussed above, the Rome Statute of the ICC provides for reparations to victims of those convicted by the ICC. Under Article 79, the Rome Statute provided for a trust fund to be established by the Parties “for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims” and “money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund.” 74 However, similar to the Adaptation Fund, the TFV is open to donations from private donors. According to Regulation 21 of the TFV Regulations, the TFV can be also funded by “voluntary contributions from governments, international organizations, individuals, corporations and other entities, in accordance with relevant criteria adopted by the Assembly of States Parties”. 75 .
Thus, by providing for the receipt of funds, the TFV could accept private donations and thereby transform the reparative nature of the fund to a charitable one. Moreover, relying heavily on voluntary contributions compromises the working of such a fund, given that just the operational costs of the TFV in its first ten years used over half of voluntary contributions received, although the ICC’s general budget covers these costs. 76 Finally, the notion that TFV contributions could be tax-deductible would take away public resources from global taxpayers. 77
In summary, as applied to climate-induced human migration, these funding plans raise important questions as to whether it is desirable that governments or private corporations and trusts who have benefitted from climate change should be requested or invited to donate to a Trust Fund relating to climate-induced migration, as opposed to direct reparations. Despite the current workings of the TFV, especially with respect to lessons that can apply to the climate change regime, the TFV’s acknowledgement of harm and focus on remedying harm of victims can provide a useful prototype for reparative justice in the context of environmental harm as well.
Conclusion
As we commemorate the 50th anniversary of the 1972 Stockholm Conference, which radically transformed international environmental law, especially in the domestic implementation of principles contained within the Stockholm Declaration, we find ourselves at the precipice of another generation of environmental legal challenges. What is clear from the experiences of the past fifty years, is that simply continuing the status quo, or relying on market mechanisms, scientific advances or awareness campaigns is not sufficient. Vulnerable communities and nations are currently facing tremendous threats to their environments and livelihoods. The IOM has warned us already that the rise in global temperatures will lead to extreme water shortages, hunger, and coastal flooding, which in turn will lead to:
“dramatic increases in internal rural to urban migration and also emigration to richer countries, particularly of young, skilled people . . . [M]illions of people would be temporarily displaced by individual extreme weather events.” 78
As we prepare to adequately address the seemingly inevitable consequences of our past, it is crucial that the victims harmed by that past are repositioned to the center of the discussion, with a focus on remedying that harm, through a legal regime based on reparative justice.
Footnotes
Jaya Ramji-Nogales ‘Slow-Onset Climate Justice and Human Mobility’ 93 (4) Temple Law Review 2021, 671-687.
Bharat H. Desai ‘Destroying the global environment: we are all potential environmental refugees’, November/December International Perspectives 1986, 27-29. ∼Bharat H. Desai ‘Managing Ecological Upheavals: A Third World Perspective’ 30 (10) Social Science & Medicine 1990, 1065-72.
Maxine Burkett ‘Climate Migration and the Deep Roots of Climate Justice’ 93 (4) Temple Law Review 2021, 653-669.
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN General Assembly A/RES/60/147 (21 March 2006).
UN, Responsibility of States for Internationally Wrongful Acts, Articles 34-39; in Text adopted by the International Law Commission at its fifty-third session, in 2001; Responsibility of States for Internationally Wrongful Acts (2001) (un.org). It was submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/56/10) (2001). The GA took “note” of the articles vide resolution 56/83 of 12 December 2001 (annex); Microsoft Word - N0147797.doc (un.org).
El-Hinnawi (1985), n.9.
Jodi L. Jacobson ‘Environmental Refugees: A Yardstick of Habitability’ 8 (3) Bulletin of Science, Technology & Society 1988, 257-258.
El-Hinnawi (1985), n. 9.
Ibid.
Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, 189, 137.
See Otto Kimminich ‘Probleme der Anpassung der Genfer Flüchtlingskonvention’ (Duncker und Humblot 1976).
Article 1 A. (2)., Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, 189, 137.
Terje Einarsen (2011) ‘Drafting History of the 1951 Convention and the 1967 Protocol’ in: Andreas Zimmermann ‘The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. A Commentary’ (Oxford University Press 2011), 37-73.
Mathias Sahinkuye ‘A Theoretical Framework for the Protection of Environmental Refugees in International Law’ 6 Transnational Human Rights Review 2019, 1-25.
See the characteristics of the Convention’s definition mentioned in footnote 28.
Bettina Müller, Marianne Haase, Axel Kreienbrink and Susanne Schmid ‘Klimamigration. Definitionen, Ausmaß und politische Instrumente in der Diskussion’ Bundesamt für Migration und Flüchtlinge (German Federal Office on Migration and Refugees,2012); available at: https://www.bamf.de/SharedDocs/Anlagen/DE/Forschung/WorkingPapers/wp45-klimamigration.pdf?__blob=publicationFile&v=11 (accessed 1 June 2022).
James C. Hathaway and William S. Hicks (2005). ‘Is There a Subjective Element in the Refugee Convention’s Requirement of Well-Founded Fear?’ 26(2) Michigan Journal of International Law 2005, 505-562.
Lena Kreck ‘Möglichkeiten und Grenzen des rechtlichen Schutzes für Umweltflüchtlinge’ 44(2) Kritische Justiz 2011, 178-184.
Ibid.
Lena Kreck ‘Möglichkeiten und Grenzen des rechtlichen Schutzes für Umweltflüchtlinge’ 44(2) Kritische Justiz 2011, 178-184 who is trying to interpret the definition of the convention relating to the status of refugees in a way that environmental refugees fall under its scope.
Bettina Müller, Marianne Haase, Axel Kreienbrink and Susanne Schmid ‘Klimamigration. Definitionen, Ausmaß und politische Instrumente in der Diskussion’ Bundesamt für Migration und Flüchtlinge (German Federal Office on Migration and Refugees, 2012); available at: https://www.bamf.de/SharedDocs/Anlagen/DE/Forschung/WorkingPapers/wp45-klimamigration.pdf?__blob=publicationFile&v=11 for an overview of different estimates on environmental refugees in a chronological order (accessed 1 June 2022)
Mathias Sahinkuye ‘A Theoretical Framework for the Protection of Environmental Refugees in International Law’ 6 Transnational Human Rights Review 2019, 1-25.
Clara Akinyosoye (2021) ‘70 Jahre Flüchtlingskonvention: Die Lücken im Asylrecht’ ORF 27.07.2021; available at: https://orf.at/stories/3222472/ (accessed 1 June 2022). Kirsten Krampe ‘Unverzichtbar! 70 Jahre Genfer Flüchtlingskonvention’ Heinrich Böll Foundation 26.07.2021; available at: 
(accessed 1 June 2022).
Jacobellis v. Ohio 378 U.S. at 197 (1965).
Psycholinguist William Levelt explains that a lexical entry for a word w is typically modeled as a complex representation consisting of several components, including a semantic form that determines the semantic contribution made by the word to the meaning of sentences containing the word; a grammatical form that assigns a word to a grammatical category and regulating the behavior of the word in syntactic environments; a morphological form that represents the morphemic substructure of the word and the morphological operations that can be applied on the word; a phonological form that specifies the set of phonological properties of the word and an orthographic form that specifies the graphic structure of word. Willem.J.M. Levelt Speaking: From Intention to Articulation (Cambridge, MA: MIT Press, 1989); ‘Spoken Word Production: A Theory of Lexical Access’ 98 Proceedings of the National Academy of Sciences 2001, 13464–13471. In application to law, see, for example, James Boyd White When Words Lose Their Meaning: Constitutions and Reconstructions of Language, Character and Community (London: University of Chicago Press, 1984).
For further suggestions on the term, see Mathias Sahinkuye ‘A Theoretical Framework for the Protection of Environmental Refugees in International Law’ 6 Transnational Human Rights Review 2019, 1-25 or the discussion of the German Federal Environment Agency in Margit Ammer, Manfred Nowak, Lisa Stadlmayr and Gerhard Hafner ‘Rechtsstellung und rechtliche Behandlung von Umweltflüchtlingen’ Umweltbundesamt (2010); available at: (accessed 1 June 2022, translation by the authors).
Jason Hickel ‘Quantifying national responsibility for climate breakdown: an equality-based attribution approach for carbon dioxide emissions in excess of the planetary boundary’ 4(9) The Lancet Planetary Health 2020, 399-404.
James A. Henderson, Douglas A. Kysar and Richard N. Pearson The Torts Process (7th ed.) (Aspen Publishers 2007), 125.
Shannon Hall ‘Exxon Knew about Climate Change almost 40 years ago’ Scientific American 26 October 2015; available at: (accessed 1 June 2022); The United States of America. (1998) ‘The Kyoto Protocol and the President’s Policies to Address Climate Change’ Administration Economic Analysis, WGB-98 0042, July 1998.
The Code of Civil Procedure, §89 (Act No. 5 of 1908).
The National Green Tribunal Act, §19 (Act No. 19 of 2010).
Donald A. Brown American Heat: Ethical Problems with the United States’ Response to Global Warming (Rowman and Littlefield Publishers 2002), citing The United States of America. (1998). ‘The Kyoto Protocol and the President’s Policies to Address Climate Change’ Administration Economic Analysis, WGB-98 0042), July 1998.
Kyle Fruh ‘Climate Change Driven Displacement and Justice: The Role of Reparations’ 22 Essays in Philosophy 2021, 102-121.
Ibid.
Margaretha Wewerinke-Singh ‘Remedies for Human Rights Violations Caused by Climate Change’ 9 Climate Law 2019, 224-243.
Maxine Burkett ‘A Justice Paradox: On Climate Change, Small Island Developing States, and the Quest for Effective Legal Remedy’ 35 University of Hawai’i Law Review 2013, 633-670.
Rebecca Buxton ‘Reparative Justice for Climate Refugees’ 94(2) Philosophy 2019, 93-219.
Edward A. Page and Clare Heyward ‘Compensating for Climate Change Loss and Damage’ 65(2) Political Studies 2017, 356–372.
Maxine Burkett (2021) supra note 54.
Daniel A. Farber ‘Basic Compensation for Victims of Climate Change’ 155(6) University of Pennsylvania Law Review 2007, 1605-1656.
Decision 2/CMA.2, FCCC/PA/CMA/2019/6/Add.1, ¶ 31-32.
Ibid.
Ibid. at ¶ 36. (emphasis added).
Decision 5/CP.23, FFCCC/CP/2017/11/Add.1, p. 21.
Decision 10/CP.24, FCCC/CP/2018/10/Add.1, ¶ 5.
Annex to Decision 10/CP.24, FCCC/CP/2018/10/Add.1,¶ 1.
FCCC/CP/2018/10/Add.1, p. 44-45.
Decision 6/CMA.2, FCCC/PA/CMA/2019/6/Add.1.
Art. 12(8), UNFCCC (1997) Kyoto Protocol to the United Nations Framework Convention on Climate Change FCCC/CP/1997/7/Add.1 Decision 1/CP.3 (11 December 1997).
FCCC/PA/CMA/2018/3/Add.2, Decision 13/CMA.1 ¶ 3.
Maxine Burkett ‘Rehabilitation: A Proposal for a Climate Compensation Mechanism for Small Island States’ 13 Santa Clara Journal of International Law 2015, 81-124.
Rome Statute, Art. 79.
Ibid.
Regulations of the Trust Fund for Victims, Resolution ICC-ASP/4/Res.3 (3 December 2005).
Regina E. Rauxloh ‘Good intentions and bad consequences: The general assistance mandate of the Trust Fund for Victims of the ICC’ 34 Leiden Journal of International Law 2021, 203–222.
Ibid.
Brown, O. (2008) International Organization for Migration Research Series No. 31, citing Nicholas Stern The Economics of Climate Change: The Stern Review (Cambridge University Press 2006).