The climate crisis is not only one of the greatest risks to humanity in this century, it also closely reflects our basic understanding of justice and how this should be administered when it comes to climate change and the climate crisis that we are all facing.
This issue of justice has come up as a serious question on the one hand because those who contributed very little to the original causes of global warming are the ones who are now the most heavily affected. Up till now, people living in the richer polluting countries have been able to insulate themselves relatively well from the immediate effects via preventive measures, but also through insurance solutions.
On the other hand, climate justice also has a temporal dimension. The generations who are responsible for having caused the most greenhouse gas emissions by building their wealth on the coal and oil fueled industrialization of society will never have to experience the full effects of climate change within their respective lifetimes. The current younger generation, which often advocates more effective climate protection, must then suffer from the “sins” of their parents and grandparents, even if they behave in an exemplary manner when it comes to climate protection. This is far from fair.
International climate justice
The following thoughts and proposals may contribute to finding an understanding on how to deal with issues of climate justice from an international perspective. A first such proposal is that anthropogenic greenhouse gas emissions accumulated in the atmosphere should be taken into account as an appropriate measure of responsibility for current and future climate change. Due to the very long residence time in the atmosphere, greenhouse gases accumulate there. The most important greenhouse gas, carbon dioxide, has an average residence time of more than 100 years. This means that emissions into the atmosphere a few decades ago are still having an impact on today’s and future global climate.
Of the anthropogenic CO2 emissions that are driving climate change today, 25% come from the US, 18% from the EU (excluding the UK), 15% from other countries in Europe and 14% from China. India and the continents of Africa and South America each account for only 3% of the global accumulated emissions (see Figure 1). The recent sharp increase in emissions in China will increase this country’s share in the coming years.
Figure 1: Course of the proportions of accumulated CO2 emissions of the different regions from 1750 to the present (Source: Our World in Data, 2021)
The fact of the matter is, that most of the poorer countries in Africa, South Asia, and South America have made almost no relevant contribution to climate change, but have themselves been affected very heavily by climate change in recent years.
In order to gauge the possible exposure to weather extremes – one of the most important manifestations of climate change – a “climate risk index” has been devised by Germanwatch to annually calculate the relative scores of countries with the highest risk exposures using data from Munich Re. This index includes the property losses in relation to a country’s GDP and the people killed by weather disasters in relation to the overall population. The ten countries most affected by weather extremes in the last 20 years are almost exclusively developing countries (Figure 2). The list is led by Puerto Rico, Myanmar and Haiti. The latter two countries are among the poorest countries in the world.
Figure 2: Germanwatch Climate Risk Index. The ten countries most affected by extreme weather events in the period 2000-2019 (Germanwatch, 2021)
In addition to increasing the vulnerability of poorer countries to weather extremes, often due to a lack of resources to set up early warning systems and implement preventive measures, people in such countries also lack access to insurance. As a result, these countries find it very difficult to repair the damages and get their economies back on track after an extreme weather event.
In order to close the gap in the administration of climate justice, representatives from academia, insurers and non-governmental organisations founded the Munich Climate Insurance Initiative (MCII) in 2005. MCII is a Bonn-registered non-profit association whose goal is to develop insurance-based solutions for people in developing countries under the umbrella of the UNFCCC climate negotiations in order to help them adapt to the already unavoidable effects of climate change. The biggest issue in the creation of this insurance approach is the recognition of a need to transfer funds from those countries who have played a substantial role in the development of climate change as we see it today to the countries most affected. Such a transfer of funds can be specially geared to subsidize local insurance schemes. The risks in poorer countries are rising sharply as a result of climate change and thus also the risk of increasing insurance costs corresponding to these risks. It would thus only be fair if the subsequent risks were covered by those who originally caused the problems: the polluters.
Since 1992, there have been international agreements which deal with the issue of compensation for affected people in developing countries in terms of losses and damage caused by climate change. Thus, the “polluter-pays principle” is defined in Principle 16 of the Rio Declaration. There is also the so-called “no-harm rule”, which states that countries are obliged to prevent damage to other states and to control the risks of environmental damage. Where damage is caused, there is an obligation to terminate the processes causing the damage and to pay compensation for all damage caused. This “no-harm rule” is a widely recognised principle of international law.
In the 2015 Paris climate agreement, the parties to this accord committed themselves to mobilize USD 100 billion per year from 2020 onwards for climate protection and the associated development of protective measures in developing countries and to increase this amount further starting in 2025. Mechanisms for the management of losses and damages caused by climate change should also include options for their insurance. These all are mechanisms to support climate justice.
Climate Justice Lawsuits
On the basis of international law, more and more lawsuits are being filed by people in poorer countries against the perpetrators on account of their increasing risks and losses. A recent example is the lawsuit brought by the peruvian farmer Saúl Luciano Lliuya against the utility provider RWE. Lliuya’s house is located in the town of Huarez at the foot of the Andes below a glacial lake, the Palcacocha Lake. Lliuya notes that RWE’s CO2 emissions have contributed to the melting of glaciers and the rise in the water level of the lake. To reduce the risk of a breach of the glacial lake’s natural boundaries and thus the flooding of Huarez, preventive measures must be taken. The lawsuit aims to ensure that RWE contributes to the preventive measures proportionally to their share of the CO2 emissions accumulated in the atmosphere, which is about 0.5%. In 2017, the Higher Regional Court of Hamm, which has jurisdiction over the claims filed against RWE, followed the arguments made by Lluya. The court recognized a link between global warming and the increasing risk of Huaraz, but still demanded scientific proof of causality.
An important contribution to this is provided by a new study published in February 2021 in the scientific journal Nature Geoscience by Stuart-Smith and co-authors. This study comes to the following conclusions:
Since pre-industrial times, the Palcacocha Lake has grown due to the melting of the Palcaraju glacier. The authors assume with a very high level of confidence (> 99% probability) that the melting of the glacier cannot be explained by natural variability. They found that almost all of the warming of about 1°C in the affected region is due to anthropogenic climate change. The authors concluded that the melting is entirely due to this observed temperature trend and that the changed geometry of the lake and valley has substantially increased the risk of a breach of the glacial lake’s natural enclosure. It will be very difficult for the defendant to refute this causal link.
There is a growing body of scientific literature citing similar studies that quantify causal attributions of global warming to weather extremes with high probabilities. Such studies are forming the basis for a future wave of successful “climate lawsuits”.
In another case, the climate refugee Iotane Teitiota from Kiribati has sued New Zealand at the United Nations Human Rights Committee (CCPR) in Geneva to stop his deportation. His complaint was filed in January 2020, saying he and his family should not be deported.
A climate passport proposed by Hans-Joachim Schellnhuber in 2017 could be a long-term solution for solving the issue of climate refugees, that could be guaranteed under international law. Such a climate passport would be a certificate for people who have had to leave their homes because of the effects of global warming. The passport should provide passport holders with the right of residence and equality before the law in safe states. A model for the Climate Passport is the Nansen Passport, which was introduced in 1922 for Russian refugees.
The Inter-generational Justice Gap
In addition to the international justice gap in the relationship between the polluters and the most affected by climate change, there is also a large inter-generational justice gap. Those generations who were living in the industrialized countries in the 1960s and the following decades built their prosperity mainly through the burning of fossil fuels, i.e. through the emission of greenhouse gases. This places a great burden on future generations, even if they behave in an exemplary manner when it comes to climate protection. In order not to put an even greater strain on the prosperity and quality of life on today’s younger generation and subsequent generations, today’s generation of decision makers must act expeditiously – even with the risk of impinging on their current standards of living – in order to contribute to intergenerational justice.
The pressure to do so has increased, especially through the “Fridays for Future” movement, since Greta Thunberg first declared to go on strike in front of the Swedish Parliament in August 2018. Fridays for Future has only recently become a global and influential movement of the younger generation, which is no longer willing to stand for the violation of their rights. This is not limited to impressive demonstrations, as some of these young people are also increasingly calling on the courts to enforce these rights.
For example the German Federal Constitutional Court on April 29, 2021 followed in its decision the constitutional complaint of nine young people requesting that the German State provide for a more dignified future: the freedom and fundamental rights of the younger generation are being violated by inadequate climate protection. Political decision makers must therefore amend the German Climate-Change Law by the end of next year.
In another case, 33 children and adolescents from Portugal sued 33 European countries in March 2021 before the European Court of Human Rights (ECHR) for more effective climate protection. The ECHR recognized that this case carries a high degree of urgency.
The pressure is growing
In April 2021, a publication by the Geneva Association, a global think tank of the insurance industry, was released on the subject of liability issues on climate change. In this publication, the Geneva Association describes seven factors that have increased the risks of climate action. These are:
- Increased physical and transition risk
- increasing awareness of the climate crisis
- stronger climate commitments from governments, corporates and investors
- availability of funding for climate litigation
- evolving legal duties
- developments in climate change attribution science
- the implications of COVID-19 on economic recovery and climate-related actions
Demands on the courts to adjudicate issues of climate justice will become even more important in the next few years. The legitimate claims of those particularly affected by climate change should be met with far more ambitious climate protection measures and voluntary support. This would help to avoid and alleviate future losses, but also future lawsuits.
Climate justice can only be established, if no country on this globe releases more than 1 t per capita of greenhouse gas emissions annually. The greater the difference between current emissions and this figure today, the greater the contributions to the costs for any relevant measures should be.
A much discussed, but rather visionary solution to the climate justice problem could be a global emissions trading scheme, which strikes a balance between the “polluters” and the increasingly affected people in the poorer countries. Under such a system, countries whose per capita emissions are higher than the global average (currently about 5 t) would have to buy emission allowances proportional to the difference from the average. The funds thus raised could then be transferred back to countries that emit less than the average, proportionate to the difference to the average global emissions. This would allow to finance climate protection and adaptation measures in the poorer countries. By gradually increasing the cost of emission allowances for rich countries, the pressure for emission reductions would increase. In this way, the global average of emissions would continue to decline, and in the long term it would be possible to approach the sustainable value of 1 t per capita.
Our World in Data, 2021: https://ourworldindata.org/co2-emissions
Germanwatch, 2021: The ten countries most affected by extreme weather events in the period 2000-2019. https://germanwatch.org/sites/default/files/Global%20Climate%20Risk%20Index%202021_1.pdf
Stuart-Smith et al., 2021: Increased outburst flood hazard from Lake Palcacocha due to human-induced glacier retreat. Nature Geoscience volume 14, 85-90. https://www.nature.com/articles/s41561-021-00686-4
Geneva Association, 2021: Climate change litigation – insights into the evolving global landscape. https://www.genevaassociation.org/research-topics/climate-change-and-emerging-environmental-topics/climate-litigation