Written by Sierra Buehlman Barbeau

Introduction:

One of the fundamental challenges of international environmental law in the 21^st century is determining responsibility and reparations for the harms stemming from climate change. When considering the massive damages developing countries and low-lying countries have experienced and will face due to climate change, there is much debate over the best way to fund reparations and assistance in adaptation. By emitting greenhouse gases into the atmosphere, altering the climate system, certain countries, corporations, and people have created a situation where their actions have disrupted the livelihoods of people in developing countries. [1] Determining responsibility for these harms is important when determining how those who have been affected will be compensated for their losses. It is also important for determining how these people will fund this shift in their lifestyles. The mechanism for determining responsibility, however, gives rise to debate. Recently, some have suggested using an “exploiter pays” model instead of a “polluter pays” model to consider responsibility for damages.

A Deep, Multifaceted Problem:

Since society started to realize that anthropogenic emissions were causing climate change and that climate change was causing problems for people in developing countries, different entities have been exploring how to allocate responsibility and who should pay for reparations and adaptation. The Rio Declaration envisioned a system that attempted to internalize the environmental cost of the global economic system in which “the polluter should… bear the cost of pollution.”[2]  In many ways, the Paris Agreement has taken a next step in implementing this idea in Article 9, where it proclaims that developed countries—or those who have contributed the most to climate change with their industrialized practices—“shall provide financial resources to assist developing country parties with respect to both mitigation and adaptation…”[3]  Several mechanisms exist for providing this financial assistance, though they have not been employed fully as developed countries have not yet contributed enough money to cover the harms that developing countries are experiencing due to climate change.[4]

Despite the problems faced in implementing this system, some have questioned whether the world is moving in either the most viable, logical, or ethical manner to ensure that those who have suffered the most receive the reparations they deserve. For example, John Kerry suggested that it would be better to use the existing global financial mechanisms, such as the IMF and World Bank. [5] Others suggest that rather than basing the calculations on the amount that different actors are responsible for based on territorial emission (the emissions that come from within each country), the calculations should instead be based on consumption emissions, or the share of emissions based on the products that people within the country consume. [6] Others still have suggested moving from a “polluter pays” model to an “exploiter pays” model, in which responsibility for the harms that people in developing countries face is rooted in more than the harm to the climate system and considers harms from colonization. [7]

While each of these ideas attempt to tackle issues different actors see as an obstacle towards efficient, logical, or fair action, the “exploiter pays” model incorporates colonization into the calculation of who pays for the damage people in developing countries face. [8] This idea recognizes that the impacts of colonialization exacerbate the harms that people in developing countries are experiencing due to climate change. [9] The “exploiter pays” model insists that as governments decide how to address the harm done by climate change, they should also address the concequences of colonialism and exploitation. [10]

One example of colonialism’s adverse, still-ongoing concequences can be seen in the continued use of monoculture farming, a system developed by the colonial regimes in many African countries. [11] The IPCC outlines the negative impacts of monoculture plantations on local populations, such as land shortages for growing food, displacement, livelihood precarity, and loss of Indigenous knowledge.[12] The report also discusses the negative impacts on the environment, such as loss of biodiversity and poor climate resilience. [13] Specifically, not only does monoculture farming reduce soil health, but the cash crops that communities now rely on for their livelihoods are less drought-resistant and will be more prone to toxins as the climate warms.[14] The exploiter pays approach argues that the cause of these problems is a combination of climate change and colonialism. [15] If not for the monoculture farming that replaced traditional farming methods in West Africa and other parts of the world, the effects of climate change would not be as impact and harm the local communities so drastically. [16] If not for climate change, the results of the monoculture farming inherited from colonialism would not have such dire impacts on communities. [17] The problem here is two-fold.

In terms of the monoculture farming example, it is ethically appropriate to consider an exploiter pays model instead of, or alongside a polluter pays model, whether the concept would work in the international legal framework is a question worth exploring. This model would likely produce a much fairer outcome for countries most affected by climate change. However, besides considering what is ethically right, in the framework of international law, it is also essential to consider what is viable: if the countries with power and funds refuse to adopt the idea, is there any chance for success? [18] The climate change loss and damages framework has posed a problem since it was first suggested because developed countries worry that loss and damage claims will evolve into expensive liability claims from developing countries. [19] If there are already so many problems convincing developed countries to take a polluter pays model seriously, is it worthwhile to also consider a more controversial exploiter pays model? The next section of this paper explores this question from an international law perspective.

Weighing the Pros and Cons:

Even though it is accepted that developed countries and their pollutive industrial practices are the main cause of climate change and the harms that follow, considering how difficult the process was to achieve acceptance of this fact, society and advocates would face even greater challenges in gaining acceptance of an exploiter pays model. The polluter pays model follows a more straightforward, scientific path to show causation: humans have been emitting more greenhouse gases into the atmosphere since the mid-1700s. [20] The increased amount of greenhouse gases in the atmosphere leads to warming of the atmosphere because these molecules trap heat in the atmosphere instead of allowing it to be released back into space. [21] This process warms the climate, which affects agriculture, food security, and people’s livelihoods. It also increases the intensity of extreme weather events, which further destroys peoples’ livelihoods and can force migration. [22] It is easy to say that a coastline was eroded by a hurricane, forcing people to move, or that a drought caused a famine, which caused people to starve, thanks to improved attribution science. [23] These connections have been enough to support the polluter pays principle but not enough to set up a liability mechanism based on polluter pays, and not enough to garner widespread acceptance from developed countries. [24]

Despite international law principles recognizing that the state that has caused the harm should pay for the harm, developed states still resist the idea that since their pollution and industrial practices caused harm, they should pay for the damages. [25] This resistance is partly because it is difficult to say exactly whose emissions caused what damage, so courts, at least in the United States, resist assigning liability to certain actors. [26] For this reason, it has been difficult for those who have been harmed to recover payment for the harm they have suffered. [27]

Primarily considering scientific causes has the advantage of being easier to prove and demonstrate, but neglecting to consider social causes means that only part of the story is told. [28] Unfortunately, when exploring causation through an exploiter pays lens, there are more challenges for developing countries that have been harmed by climate change. Unlike the polluter pays framework, the chain of causation in the exploiter pays framework is more social than scientific, which is often less readily accepted by judicial systems. [29] This framework argues that developing countries would not be as drastically harmed by climate change if not for colonial practices. When different colonial regimes fell, the new countries inherited the institutions of the colonial powers, usually maintaining deep economic and political ties with their colonial powers. [30] This framework argues, for example, that if not for colonialism, so many West African farmers would not be engaged in peanut farming; rather, they would have maintained traditional, diversified farming practices that would have better enabled them to handle climate change. [31] Like the scientific chain of causation, which supports the polluter pays framework, it is easy to draw a line between, for example, French colonialist practices, monoculture farming in West Africa, and the harm that these practices have brought to communities. [32]

However, there is already strong pushback from polluting countries: whenever a former colony speaks of reparations—even without tying these reparations to climate change—the former colonist power generally dismisses or ignores the request. [33] The former colonialist powers might ask: why are former colonies still engaged in these harmful practices so many years after independence? Unfortunately, it is likely that our modern world courts and institutions, controlled primarily by the polluting countries and former colonial powers, would ask this question. The developed world hardly acknowledges its responsibility and liability for climate harm. Asking them to acknowledge and pay for climate harm exacerbated by colonialism could be a setback for developing countries to obtain any funds for loss and damage or adaptation at all.

When considering the goal of this debate—to compensate those who have been harmed by climate change and to facilitate adaptation in the future—we must ask if the “exploiter pays” model is the right one to pursue. Activists and developing countries have fought hard to develop the fragile system that we have. Despite the scientific proof that the developed countries’ industrial polluting practices have caused climate change, the developed countries avoid acknowledging their responsibility and still have not raised the $100 billion by 2023 that the Paris Agreement aimed to provide. If we want to fund loss and damage payments and assistance for adaptation, it might be best to continue focusing on the polluter pays principle, at least in the short term. However, we should continue working towards a well-rounded, exploiter-pays perspective and continue to highlight the devastating effect that the combination of climate change and colonialism has had on many communities. If we do not draw attention to these problems, people who were harmed and are still being harmed by the consequences of colonialism will not receive the compensation they deserve for the damage they have suffered.

Conclusion:

Communities in the developing world that have lost their livelihoods due to extreme heat or drought need funds immediately to sustain themselves, so it is important to consider which model of raising funds will be most effective. Even though it is important to acknowledge the whole history and explore the full causes of these problems, it is also essential to work towards the most viable path to compensation for the countries and communities who are suffering. The polluter pays model might be a better hope to get funding quickly.

 

Works Cited:

[1] IPCC, Climate Change 2022 Impacts, Adaptation, and Vulnerability at 6, IPCC AR6 SYR.

[2] The Rio Declaration on Environment and Development art 16, June 14, 1992, 31 I.L.M. 874.

[3] Paris Agreement art. 9, Dec. 12, 2015, 55 I.L.M. 740; Hannah Ritchie, Where in the world do people emit the most CO2? (Oct. 4, 2019), https://ourworldindata.org/per-capita-co2.

[4] Brad Plumer et al. Rich Countries Agree to Create a Climate Fund, New York Times, (Nov. 20, 2022) https://www.nytimes.com/2022/11/19/climate/un-climate-damage-cop27.html (noting that the U.S. secured $1 billion for climate loss and damage while the European Union has pledged $300 million); Gilbert Mwijuke, Climate Change Loss and Damage Fund: Bittersweet Win for Vulnerable Nations, The East African (Nov 27, 2022) https://www.proquest.com/newspapers/climate-change-loss-damage-fund-bittersweet-win/docview/2740247840/se-2?accountid=8285 (estimating that the most vulnerable countries have lost $525 billion and could continue to lose $50 billion per year); Emma Marris, The West Agreed to Pay Climate Reparations. That was the Easy Part, The Atlantic https://www.theatlantic.com/science/archive/2023/03/pakistan-monsoon-countries-pay-climate-change-loss-damage/673552/ (Mar. 29, 2023) (describing the UN climate fund as an “empty bucket”).

[5] Justin Worland ‘Moral Obligation.’ John Kerry Says Developed Countries Need to Ramp Up Help for Growing Climate Losses, Time (Oct. 28, 2022) https://time.com/6225834/john-kerry-loss-and-damage-climate-interview/.

[6] David Hunter et al., International Environmental Law and Policy 645 (2021); Michael Burger et al., The Law and Science of Climate Change Attribution, 45 Colum. J. Envtl. L. 57, 76 (2020).

[7] Prakash Kashwan and Jesse Ribot, Violent Silence: The Erasure of History and Justice in the Global Climate Policy 120 Current History 326, 327 (2021); Jesse Ribot, Violent Silence: Framing Out Social Causes of Climate-Related Crises 49 J. of Peasant Stud. 683, 692 (2022).

[8] Id.

[9] Sylvia Tamale, Decolonization and Afro-Feminisim, 83-89 (2020); Hunter supra note 6, at 714.

[10] Susan K. Serrano & Ian Falefuafua Tapu, Reparative Justice in the U.S. Territories: Reckoning with America’s Colonial Climate Crisis, 110 Calif. L. Rev. 1281, 1305 (2022) (discussing ongoing impacts of U.S. colonialism on places like Puerto Rico in addressing climate change).

[11]  Jean B. Faye & Yvonne A. Braun, Soil and Human Health: Understanding agricultural and socio-economic Risk and Resilience in the Age of Climate Change, 77 Health & Place at 2 (2022); Walter Rodney, How Europe Underdeveloped Africa, 284-85 (1972) (describing how colonizers people in certain places in Africa to grow only one kind of crop, such as groundnuts in Senegal and cotton in Sudan whereas in pre-colonial Africa, many crops were grown).

[12] IPCC 2022 Report: 15.13.5, IPCC, Climate Change 2022: Impacts, Adaptation, and Vulnerability.

[13] Id. at 18.5.3; see also Faye supra note 11, at 3 (describing a “chain of explanations” to explain the issues that West African countries are facing because of overexploitation; how the colonial practice of replacing Indigenous practices with Western modes of production, including monoculture, has resulted in “vulnerable agroecosystems” which increase vulnerability in the local communities).

[14] Faye, supra note 11, at 2.

[15] Ribot, supra note 7, at 690 (“It may seem logical and self-evident to natural scientists that a storm or drought… causes damages that follow, but it is equally obvious in the social sciences that vulnerabilities, without which damage would not have happened, are causes just as well”).

[16] Faye, supra note 11, at 2; Tamale, supra note 9, at 83.

[17] Tamale, supra note 9, at 83.

[18] See Karl S. Koplan et al., Climate Change Law 20 (2021) (citing disagreements over the meaning of ‘common but differentiated responsibilities’ as one of the reasons for the Kyoto Protocol’s failure); Hunter surpa note 6, at 462 (describing the United States’ denial of the precautionary principle); Who’ll Pick Up Tab for Climate Change Loss, Damage to Planet? The East African (Nov. 12, 2022) https://www.proquest.com/newspapers/who-ll-pick-up-tab-climate-change-loss-damage/docview/2735509385/se-2?accountid=8285 (quoting EU official who worried that discussions of loss and damage will lead to liability and compensation claims).

[19] Navin Singh Khadka, COP26: Rich Countries ‘Pushing Back’ on Paying for Climate Loss, BBC (8 Nov. 2021); Hunter supra note 7 at 689.

[20] IPCC, supra note 1 at 15-17.

[21] Mark Z. Jacobson, 100% Clean, Renewable Energy and Storage for Everything 3-6 (2021).

[22] IPCC supra note 1, at 15-17; Peter Stott, How Climate Change Affects Extreme Weather Events, 352 Science 1517 (2016).

[23] IPCC supra note 1, at 15-17

[24] Maciej Nyka, State Responsibility for Climate Change Damages, 45 Rev. of Eur. & Compar. L. 131, 138 (2021).

[25] Jens David Ohlin, International Law: Evolving Doctrine and Practice, 239 (2021), Nyka supra note 24, at 134.

[26] Nyka supra note 24, at 145; Massachusetts v. EPA, 549 U.S. 497 (2007); Native Village of Kivalina v. ExxonMobil, 663 F. Supp. 2d 863, 880 (2009).

[27] See Native Village of Kivalina, supra note 26.

[28] Fabien Cottier et al., Framing the Frame: Cause and Effect in Climate-Related Migration, 158 World Development at 2 (2022) (comparing a “social-causal” model of climate impacts with an “environmental driver” model; concluding that while the “social-causal” model captures a more complete story of climate migration, the “environmental driver” model simplifies the analysis and allows for policymakers to address the problem more easily).

[29] Ribot, supra note 7, at 686.

[30] Muema Wambua, Transitional Justice and Peacebuilding: The ICC and TJRC Process in Kenya, 9 African Conflict & Peacebuilding Rev. 54, 57 (2019) (discussing how the Kenyan government maintained colonial institutions after independence and citing these institutions as the root of recent conflict in Kenya); Tamale, supra note 9, at 83 (discussing financial ties between France and the African former French colonies).

[31] Tamale, supra note 9, at 83; Faye supra note 11, at 3.

[32] Rodney, supra note 11; Faye, supra note 11, at 3.

[33]  Max Fisher, Calls Grow for Colonial Reparations: Paths Vary in Gaining Restitution for Past Abuses, their Effects, Chicago Tribute (Aug. 30, 2022);