Redressing Historical Responsibility for the Unjust Precarities of Climate Change in the Present

Abstract

This chapter is part of a volume on debating the law of climate change and thus assumes the style of legal debate. We argue that industrialized countries of the Global North are responsible for historical emissions that contribute to the unjust precarities of climate change in the present for states in the Global South, people living in poverty, and Black, Indigenous and other marginalized peoples in settler colonial states. First, relying on international legal doctrine, we show how the 'no harm' rule of customary international law provides one avenue of recourse. Nevertheless, we also argue that this avenue is limited because international law reflects social reality and states, companies and institutions of the Global North have power to shape the law to the detriment of others. We therefore undertake an immanent critique of international legal doctrines drawing on critical traditions, including critical race theories and Third World Approaches to International Law (TWAIL). We expose the internal contradictions in the law that preclude full repair for historical injustices. We also expose that international law's inability to redress the problem at hand stems from climate change's imbrication with broader histories of dispossession, including colonialism, slavery and their reincarnations in the global political economy. We therefore argue for alternatives to obtain redress. We call for "reparations" that would look to marginalized peoples for means and ends to fully decolonize the international legal order and to re-envision social relations among peoples that could also address climate harms.

Keywords: Climate Justice; Reparations; International Law; Immanent Critique; Critical Race Theory; Third World Approaches to International Law (TWAIL)