Reparations & Remedy for Loss & Damage

The following is derived from the HIC-HLRN contribution to the Human Rights and Climate Change Working Group as a basis for advocacy before the Loss & Damage Fund’s Transitional Committee, in advance of its third meeting on 29–31 August 2023.

It is by now axiomatic that societies that have contributed the least to climate change are suffering and will continue to suffer the worst of its impacts. Already, the climate vulnerable are experiencing ongoing and increasing deprivation of their human needs and, thus, human rights. Those deprived of their human rights have a right to a remedy. Such remedy for victims and populations whose material living conditions and livelihoods are affected by climate change lies at the purposeful core of the Loss & Damage Fund (LDF). The present input to the TC addresses this issue not on the basis of aspiration or moral argument, but grounded in already-codified norms and standards of international law, enabling the TC to advance deliberations on the LDF`s anticipated outcomes, in addition to the other important matters of procedure and financial arrangements.

We refer to the remedy and reparations framework (RRF) adopted by acclamation in UN General Assembly (GA) resolution A/RES/60/147, after nearly two decades of deliberation through the UN Human Rights System. The RRF provides guidance to the TC on matters of legal bases, scope, eligibility, purpose and content of relief from all manner of loss and damage associated with climate change where persons have undergone gross violations of human rights. This fulfillment of the human right to remedy is quite independent of any claim against an author of the harm done.

The RRF specifies the constituent elements of the pre-existing right to remedy and reparations for victims of gross violations of human rights and/or serious violations of international humanitarian law, the impacts of which are akin to many forms of loss and damage associated with climate change. It rests on inter-state consultation and expert advice, including from two eminent Special Rapporteurs mandated by the UN Commission for Human Rights. The general principles of customary international law contained in the RRF do not add to States’ existing individual, collective, domestic and extraterritorial obligations. However, if they have not already done so, States are  required under international law to ensure that their domestic law harmonize with their related international legal obligations.

Historic legal development

Reparations are alternatively known as a practice in international relations, whereby victorious powers exercise claims against vanquished adversaries as tribute or compensation for harms incurred in the conduct of war. However, such reparations are not necessarily associated with remedy for gross violations of the human rights of natural persons, either as a premise or a destination of tribute exacted. Even in the monumental International Military Tribunals following World War II, victims were not a subject of the processes or outcomes.

Judicial precedents for applying reparations begin with the Chorzów Factory case, which also involved an interstate claim against Poland for the damage suffered by two German public corporations when Poland appropriated a nitrate factory. The Permanent Court of International Justice determined that the obligation to make full reparation. Such arrangements have been known also as compensation or conciliation following armed conflict. In contemporary international relations and law, a State responsible for an international wrongful act must make full reparation for the injury caused by the internationally wrongful act. However, determining liability is beyond the scope of LDF.

Despite lingering impressions that reparation foremostly involves state-to-state contention, other forms have evolved to include victims, culminating in the codification of victims’ rights, after long neglect, amid similar inattention to economic, social and cultural rights. Notably, since 2002, the International Criminal Court has operated two channels of reparations for victims: an abstract one arising from the rare conviction of individual defendants, and another in the Form of the Trust Fund for Victims, which, since 2004, channels relief to individual and collective victims on the basis of the Court’s recognition of a gross violation (serious crime) and the harm incurred.

More recent developments have explicitly linked the right to remedy and reparations to climate change and climate impacts. The Committee of the Rights of the Child, in its General Comment No. 26 on the environment and climate change, states that “States are encouraged to take note that, from a human rights perspective, loss and damage are closely related to the right to remedy and the principle of reparations, including restitution, compensation and rehabilitation.” (See “Rights of Children, Future Generations amid the Triple Planetary Crisis” in this issue of Land Times/أحوال الأرض.)

Furthermore, in a quasi-judicial precedent, the Human Rights Committee decided that Australian islanders who filed a petition claiming that their islands would become uninhabitable and that Australia had violated several rights under the International Covenant on Civil and Political Rights by failing both on the accounts of mitigation and adaptation, were right, and asked Australia to provide full reparation, which included “provid[ing] adequate compensation, to the authors for the harm that they have suffered; engag[ing] in meaningful consultations with the authors’ communities in order to conduct needs assessments; continu[ing] its implementation of measures necessary to secure the communities’ continued safe existence on their respective islands; and monitor[ing] and review[ing] the effectiveness of the measures implemented and resolv[ing] any deficiencies as soon as practicable.”

The legal concepts of remedy and reparations as developed now also focus on the components of impacts, recovery needs and entitlements of victims, without reference to liability or accountability for the shock, violation and resulting harm. They reflect the evolution of reparations originally expressed in jurisprudence and international relations as a state-to-state matter, usually paid as mostly monetary, but also non-monetary means of compensation for harm inflicted by a state organ on a party of another state.

Norms of both law and practice have advanced to favor more individualized and victim-based reparations beyond politicized State-to-State claims, allowing for mechanisms directing remedy and reparation for loss and damage to those enduring the harm. Remedy for victims supersedes other considerations. Thus, the RRF’s concentration on victims and affected persons and communities harmonizes with these priorities, as well as limitations of the LDF. The duties and obligations of states and other liable parties remain subjects beyond its scope.

Gross Violations: Forced Displacement and Eviction in focus

The RRF would be exemplary as a tool to remedy the likely event of displacement accompanying climate-association loss and damage. However, the RRF’s response to “gross violations of internationally recognized human rights” also encompasses also interchangeably referred to in both international legal instruments and in quasi-judicial bodies as “flagrant,” “massive,” “systematic,” “serious,” or “large-scale” violations, owing to their similar gravity. Violations of economic, social and cultural rights may also be gross and systematic in scope and nature, and must consequently be given all due attention in connection with the right to reparation.

Meeting the criteria of severe deprivation and its often violent and large-scale nature is the practice of involuntary displacement, including “forced eviction,” defined as “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection” . While the UN Committee on Economic, Social and Cultural Rights (CESCR) has concluded that “forced evictions are prima facie incompatible with the requirements of the Covenant,” the Commission on Human Rights has repeatedly determined that forced eviction constitutes “gross violation” of human rights, without reference to the number or scale of victims.

Particularly relevant to past, current and prospective displacement and resettlement associated with climate change, CESCR also provides the criteria for lawful evictions and displacements consistent with obligations under the Covenant, requiring appropriate procedural protection and due process. Any displacement, resettlement or eviction not meeting the required procedural safeguards constitutes a forced eviction and, therefore, a gross violation of human rights.

Content of Remedy and Reparations

In cases involving deprivation of the human right to adequate housing in the context of climate change, for example, the RRF provides the formula for restitution of rights, regardless of causality attributed to any duty bearer or third party committing a forced eviction or other gross violation. The composite elements of reparation for victims are eminently suited to cases of displacement—including in the context of adaptation projects beyond the LDF—associated with climate change, whether in anticipation of, or resulting from a sudden or slow-onset causes.

Elements of remedy and reparations form a composite of the following values and constituent actions:

• Restitution

Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.

The victims must not be compelled to be “resilient” in the sense of returning to the original situation by their own agency. Nor does restitution replace the prior obligation of the treaty-bound State or intergovernmental organization to ensure “progressive realization of human rights” and “continuous improvement of living conditions” consistent with sustainable development.

In the context of human rights harms caused by the climate crisis, this could mean either restoring the actual situation, where possible (e.g., rebuilding a house in case of a climate change-associated disaster), or assisting victims in achieving a situation that is equal to, or better than the previous one (e.g., planned relocation in the context of slow onset events that render an area inhabitable).

• Return

In the likely circumstances of climate change, return may be a core entitlement, but not always realistic or physically possible, especially considering coastline, flood risk and topographical changes. Where such an entitlement is impaired, resettlement may be the alternative.

• Resettlement

Resettlement of climate-change-affected populations supported by the LDF should apply the best practices in the field so that sufficient safeguards ensure that rehoused communities experience equal or better living conditions, including livelihoods and longer-term livability with climate resilience, ensuring above-cited “progressive realization of human rights” and the “continuous improvement of living conditions” UN agencies should be prepared to integrate applicable human rights and reparation standards in their normative and operational functions.

• Rehabilitation

The principle of due recognition of victimhood plays a crucial role in reparations in international human rights law. The notion of harm has not only material, but also moral dimensions. The RRF makes mention of “medical and psychological care as well as legal and social services,” but does not limit application to these forms. This category can be of particular importance for non-economic losses that cannot be restituted; e.g., health-related impacts or loss of cultural heritage. In international human rights law this has translated into the recognition that violations are capable of causing mental damage and emotional suffering, for example, which has allowed international human rights bodies to consider the next of kin of direct victims of human rights violations, their dependents and persons who have suffered harm by having intervened to assist the victim, or to prevent victimization, as victims in their own right. Rehabilitation means all aspects, including social, vocational and cultural. Reputational rehabilitation may be required also in the common practice of vulnerable communities forced to live in precarious areas treated in word and deed as “encroachers” and “trespassers,” where already-impoverished and victimized populations also endure the blame for their plight.

• Compensation

For those values that cannot be restored, the RRF emphasizes that “any economically assessable damage” be included in the assessment of values subject to compensation. The RRF gives unexhaustive examples of irretrievable losses to be compensated by monetary or other means, including (a) Physical or mental harm; (b) Lost opportunities, including employment, education and social benefits; (c) Material damages and loss of earnings, including loss of earning potential; (d) Moral damage; (e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social services. However, shifting costs, or the loss of time, social capital, life and limb would be included in such calculations, likely through the application of informed quantification and/or actuary methods to determine appropriate and proportional measures that correspond to the gravity of the violation and the circumstances of each case.

• Guarantees of non-repetition

This aspect of reparation calls for measures by the territorial State, but not limited to it, that will also contribute to prevention of recurring loss and damage. This entails increased mitigation efforts such as a full and equitable phase-out of fossil fuels, and increased public, grant-based finance for adaptation to build resilience and prevent future harms from happening. Additionally, these may relate to the nature and location of any displacement/resettlement to avoid further displacement, but also to institutional and social reforms ranging from strengthening an independent and competent judiciary, to training public servants and public education, sufficient monitoring and early-warning functions, as well as protecting human rights and environment defenders.

• Satisfaction

Satisfaction entails a broad category of reparations, often aiming to emphasize the wrongful nature of the harm, publicly and symbolically acknowledge suffering, and respect the dignity of those who have been harmed. Despite its relatively abstract nature, criteria for ensuring victims’ satisfaction are ample in the RRF. However, only the affected persons can determine satisfaction with the process and outcomes. Measures that redound to satisfaction vary, but the RRF emphasizes the non-material actions and efforts that include:

1.   Verifying the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations;

2.   Identification and reburial of the bodies in accordance with the expressed or presumed wish of the victims, or the cultural practices of the families and communities;

3.   A declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim;

4.   Publicly acknowledging the facts and/or apologizing for forcing victims to live in harm’s way;

5.   Judicial and administrative sanctions against natural or moral persons liable for the violations;

6.   Commemorations and tributes to the victims that raise awareness of climate-change hazard;

7.   Carrying out an accurate account of the material and non-material consequences of a climate-change event.

In the context of climate change-associated displacement also, any LDF conditionalities and State behavior should respect the peremptory norm of non refoulement of cross-border climate refugees.

Settled Questions

In effecting reparations, international human rights law, in general, and the RRF, in particular, stipulate certain conditions must prevail, including: (a) Equal and effective access to justice; (b) Adequate, effective and prompt reparation for harm suffered; and (c) Access to relevant information concerning violations and reparation mechanisms. Accordingly, the LDF procedures would have to align with States’ obligations to disseminate relevant information about all available remedies through the appropriate channels. Such assistance to victims seeking remedy for loss and damage may require all appropriate legal, diplomatic and consular means to ensure that victims can exercise their rights. These measures would be for the purpose of ensuring that affected communities determine the most-appropriate types and avenues of remedy, considering also that the requisite satisfaction criterion can only be determined by the victims in all cases.

Moreover, the RRF applies general principles of international law (i.e., customary law) to explicitly settle—or at least guide—several of the lingering questions of LDF operations from for the TC:

Eligibility

The RRF offers a norm-based grounding for loss and damage assessment with a view toward remedy for eligible parties as already defined in relevant international law. “Victims” are any and all persons who individually or collectively have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through gross violations of international human rights law. A person is considered a victim regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted, or convicted, and regardless of the familial relationship between the perpetrator and the victim. Where appropriate, and in accordance with domestic law, the term “victim” also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization. In the context of the deliberations of the fund, this definition of victims and these criteria for eligibility can help identify populations, groups and communities that are particularly vulnerable to the climate crisis.

Scope

The RRF seeks to be comprehensive in identifying the values at stake and potentially subject to loss and damage. It also applies the principle of proportionality such that the remedy be commensurate with the gravity of the violations and harm suffered.

Consistent with applicable treaty provisions or other international legal obligations statutes of limitations do not apply to gross violations of international human rights law, which constitute crimes under international law. The RRF stipulates also that domestic statutes of limitations for other types of violations that do not constitute crimes under international law, including those time limitations applicable to civil claims and other procedures, should not be unduly restrictive.

Assessment of actual or potential material and non-material values at stake

Assessing loss and damage is key to mandating scope, financing arrangements and legitimacy of the LDF. Only a handful of dedicated local and international civil society organizations such as HIC-HLRN maps or counts the numbers of people affected by housing, land and property rights violations and their material and non-material impacts by any cause, including in the context of climate change. The Disaster Losses and Damages tracking system of the UN Office of Disaster Risk Reduction (UNDRR) is a useful tool for States, but considers hazards, risks and impacts on a macro level not suited to the granular and community-specific assessments required to deliver comprehensive and proportionate remedy and reparation to victims. The LDF would benefit from a coherent methodology, expertise, partners and cases for quantifying actual and potential loss and damage associated with climate change.

Building on human rights-based loss and damage needs assessments will be essential to understand the nature and the scope of losses and damages, how they impact different groups in vulnerable situations and what constitutes effective remedy for them. The Santiago Network for Loss and Damage (SNLD) and partners could play an important role in developing appropriate methodologies in collaboration with UN, regional and national human rights institutions and, and providing assistance to developing countries in carrying these out.

Within the principle of proportionality, reparation should be consistent in scale to the harm incurred, whether material and moral damages. Whereas the damage will be relevant to the form and quantum of reparation, the existence of material damage is not a requirement for seeking reparation.

Other Considerations

• While the RRF is aptly suited for cases of destruction, damage, dispossession and displacement, other potential gross violations; however, other forms of gross violations and their remedy such as severe actual or potential deprivation of food security, persecution of environment defenders and climate-change activists may fall outside the bounds of the RRF, or require some adjustments on the part of the LDF to be applicable.
• Actors and legal persons other than natural persons also may incur harm subject to reparation and fall within the purview of the RRF. Even if the RRF were not applicable to all cases of loss and damage, it still could provide the conceptual core of what loss and damage remedies would look like.
• The human rights-based approach (HRBA) incorporates also the obligations of all treaty-bound states  to ensure the “progressive realization” of economic, social and cultural rights and the “continuous improvement of living conditions” consistent with sustainable development commitments, which is not considered in the common usage of the term “resilience,” as mere recovery to the situation before the shock. The pursuit and value of “resilience” may be more appropriately applied to systems and structures. 
• The RRF focuses on the victimization and its remedy as within the obligation of the State in which the harm takes place. The LDF would function accordingly to support the entitled remedy where the territorial State lacks the means and bears the duty to seek, consent to,  and facilitate external efforts at relief of victims, and/or the harm results from causes outside the State’s jurisdiction or territory of effective control. Applying the RRF to loss and damage associated with climate change is likely to apply in such circumstances; however, the RRF advises that, in cases where a natural or other legal person would be found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State—or, in this context, the LDF—has already provided reparation to the victim.

Recommendations

In light of the prior and permanent norms of international law explored here, we propose the following consideration and action on the part of the TC:

• That the TC be explicit in its reference to the current and applicable RRF as a guide for remedying loss and damage associated with climate change. This would enable determination of eligibility, scope and values to be quantified and subject to remedy.
• While reparation as such does not entail a duty to prosecute and punish perpetrators of human rights violations, such a duty is closely linked to the victim’s right to redress and justice, and is thus deferred to other competent bodies.
• That the TC recognizes that the LDF would benefit from coherent methodologies, models, expertise, partners and detailed cases that exemplify assessments quantification of actual and potential loss and damage associated with climate change, focusing on the human rights harms that it causes, and mandates in the context of readiness the SNLD and partners and communities to assist countries in undertaking human rights-based loss and damage needs assessments.
• UN agencies should be prepared to integrate applicable human rights and reparation standards in their normative and operational functions, while supporting further development of resettlement and rehabilitation experience within the human rights approach (beyond scope of the LDF).

Image: A peaceful event to draw attention to the campaign to Make Polluters Pay for the Loss and Damage they have caused to countries in the Global South. Source: Christian Aid.