A just alternative to litigation: applying restorative justice to climate-related loss and damage

Abstract

Climate litigation is increasingly a feature of international climate policy. However, loss and damage cases have mostly been unsuccessful due to tensions around uncertainty, attribution, and the relationship between climate change and extreme weather events. While there is consensus that Annex I Parties to the United Nations Framework Convention on Climate Change (UNFCCC) have contributed more to historical greenhouse gas emissions than non-Annex I Parties have, there is great reluctance on their part to take responsibility for loss and damage. Considering the shortcomings of climate litigation and the impasse in the UNFCCC, we propose an alternative, non-judicial approach to addressing loss and damage–restorative justice. Applying a four-stage framework, we draw on the experience of non-Annex I Parties in the Caribbean with Hurricanes Irma and Maria in 2017 to (1) argue that existing attribution models can help identify restorative justice cases; (2) scope a role for the Warsaw International Mechanism in process design and preparation; (3) make a case for truth and reconciliation conferences, and restitution, as part of the restorative dialogue; and (4) call for the integration of restorative justice norms into global climate governance as a pathway for progressing negotiations.