2. Reconfiguring climate ‘harms’

Climate harms largely result from the globalization of industrial and urban ways of living. Anthropogenic disruptions of ecological processes triggered by the global fossil fuel economy and its resulting steep rise of greenhouse gas (GHG) emissions over time can arguably be viewed as a failure at planetary magnitude of the ‘no-harm’ rule.Footnote ⁹ This rule, recognized as an expression of customary international law, set out that a state is bound to ‘prevent, reduce and control the risk of environmental harm to other states’,Footnote ¹⁰ in addition to having an obligation to protect the environment within its own territory and jurisdiction. First enshrined in Principle 21 of the 1972 Stockholm Declaration on the Human Environment – which provides that states have ‘the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction’Footnote ¹¹ – it has since been reinscribed in multiple instruments, including the preamble of the United Nations Framework Convention on Climate Change (UNFCCC).Footnote ¹²

Yet, in contrast to traditional cases of cross-border pollution, climate change is a phenomenon the causes and effects of which exceed full appreciation, thereby challenging but not evading the attribution of legal liability. Indeed, climate harms are best conceived as a permanent flow of entangled actions and reactions vastly spread across matter, subjects, space, and time. This physical reality is employed as a shield behind which actors hide their responsibilities and is used in court as salient tactic of de-responsabilization. In the Torres Strait Islanders petition, for example, the Australian representatives defined climate change as ‘a global phenomenon arising from myriad acts committed by innumerable private and State entities over decades that are unquestionably beyond the jurisdiction and control of [one] State’.Footnote ¹³ The Australian government invoked this argument against the Torres Strait islanders to contest the alleged violation of their right to life and right to live on their islands in accordance with their traditional culture. As the case instantiates, the dispersed, diffused, and deferred nature of climate harms is being instrumentalized today by those historically most responsible in order to dilute their obligations towards those bearing the impacts. For example, in the Torres Strait Islanders petition the Australian representatives asserted indeed that the causal pathways involving anthropogenic climate change are ‘intricate and diffuse’ and that, consequently, ‘a threat that is not attributable to a State cannot be ensured or protected by that State where such protection cannot be achieved by the State alone’.Footnote ¹⁴ As Angela Last puts it, while acknowledging being ‘geophysically active’, responsible actors attempt to evade their obligations by remaining ‘politically passive’.Footnote ¹⁵

To handle the complexity of climate harms as transboundary by nature, regimes of international regulation worked on turning the ‘climate’ into a governable ‘object’ – to ensure commitments from states and co-ordinate a global response to prevent and mitigate its causes and effects. As Stephen Humphreys reckons: ‘[a]ny claim to “governance” must presumably make an initial assumption that the thing to be governed may become a viable object of law—that it is, in short, governable’.Footnote ¹⁶ The governance of climate harms was facilitated by standardizing different GHGs and translating abstract units into ‘objects’ of governance and regulation, such as the ‘tonne of carbon dioxide equivalent’ (tCO2e)’.Footnote ¹⁷ This legal scaffolding was built to govern and regulate climate harms in ways similar to other environmental harms, based on a system of causality and attribution that organizes states’ historical responsibilities for GHG emissions and other climate change-contributing activities.Footnote ¹⁸ This system of causality and attribution helps to concretize and make intelligible climate harms that, by their very nature, can never be reduced to a single perpetrator nor to a single victim.Footnote ¹⁹ Yet, since a causal link between a particular harm and a specific human rights violation must always be established for an ‘actual interference’ to exist – and hence for an applicant to be ‘distinguished individually’ and be admitted before a human rights mechanism – only few climate cases have fulfilled these admissibility criteria to date.Footnote ²⁰ Whereas domestic constitutional and tort law-based litigations have so far been more successful in overcoming the challenges of causality to establish victimhood,Footnote ²¹ recent international litigations have also managed to fulfil these conditions. In the Torres Strait Islanders petition, for instance, the UNHRC indeed recognized that ‘the risk of impairment of those rights, owing to alleged serious adverse impacts that have already occurred and are ongoing, is more than a theoretical possibility’.Footnote ²²

The causal nexus requirement has thus become an important point of contestation and a strategic site of transnational legal mobilization to loosen the link between individuated perpetrators and victims of climate harms. In both domestic and international settings, climate policies and legislations show a move from public to private perpetrators; from individual to aggregated or collective victims – whether ‘elderly women’, ‘children’ or ‘future generations’ – and from actual to potential or foreseeable harms.Footnote ²³ Activists are pushing for environmental NGOs to be granted more scope and standing to legally challenge the actions and omissions of states and transnational corporations that disproportionately contribute to climate harms and differentially affect people vulnerable to their effects.Footnote ²⁴ The involvement of NGOs to represent collective claims is observable in the KlimaSeniorinnen case, brought before the European Court of Human Rights (ECtHR) by an association representing nearly 200 elderly women, while the Greenpeace Nordic case was brought by six young climate activists along with two environmental NGOs.Footnote ²⁵ In domestic proceedings too, big corporations – from Royal Dutch Shell, to Exxon Mobile, RWE, and Holcim – are being sued for their historical actions and omissions to reduce their global carbon footprint.Footnote ²⁶ These developments all stretch the understanding and scope of what constitutes climate ‘harms’, who is considered affected by them, and how this can be evidenced in court.

Indeed, aside from an in/direct representation of victims of climate harms before courts, NGOs and social movements for climate justice played a key role in concretizing the differential nature of climate harms in their historical origins and their material manifestations. This extension of climate harms and who is mostly affected by them is central to what some have identified as a ‘decolonial turn’ in climate litigation, following the ‘rights turn’ a decade earlier.Footnote ²⁷ This is reflected in the increased attention paid to the intricate relations between colonialism and climate change, and expressed in how litigants from the global periphery and (post)colony demand accountability for (post)colonial forms of extractivism by actors located in the historic metropoles and industrial core.Footnote ²⁸ A vast literature has established how climate harms are globally distributed alongside racial capitalist structures built throughout a European colonial history of trans-Atlantic slavery and plantation economies – or what OlúfẸmi Táíwò refers to as the ‘global racial empire’.Footnote ²⁹ The former UN Special Rapporteur on contemporary forms of racism, Tendayi Achiume, articulated this in her last report on ‘Ecological crisis, climate justice and racial justice’ by highlighting ‘the racially discriminatory and unjust roots and consequences of environmental degradation, including climate change’.Footnote ³⁰ Achiume deplored the consistent lack of visibility granted to regimes of imperial extraction that generated ‘racial sacrifice zones’ – or ‘the ancestral lands of Indigenous peoples, territories of the Small Island Developing States (SIDS), racially segregated neighbourhoods in the Global North and occupied territories facing drought and environmental devastation’.Footnote ³¹ As Achiume warns: ‘there can be no meaningful mitigation or resolution of the global ecological crisis without specific action to address systemic racism, in particular the historic and contemporary racial legacies of colonialism and slavery’.Footnote ³² What Achiume and others point out is the necessity to consider the structurally racialized nature of climate harms.

These new approaches to climate politics and litigation testify to a conceptual stretch from a narrow category of actual climate harms to a broadened recognition of potential or foreseeable harms, which expands the causality nexus. This reconfiguration of the material boundary of climate harms speaks, I contend, to a shift from a traditional to a more progressive grammar of climate justice by including possible harms in addition to those already actualized (as illustrated by the passage from the first to the second column in the first row of Figure 1). This progressive grammar, however, encounters two important limitations that inhibit claims for repairing climate harms: first, it is unable to reckon with longer lineages of colonial injustices that tie climate harms back to their historical origins and attend to a fuller spectre of their enduring effects over time (as I will further elaborate in Section 5); and second, it cannot recognize harms across ‘species barriers’ (as I will further elaborate in Section 3). It is on this level of entangled harms across space and time, across human and nonhuman species, that a reparative grammar of climate justice appears essential (as illustrated by the passage from the second to the third column in the first row of Figure 1). A reparative grammar of climate justice reconfigures the current boundaries of traditional rights-based approaches to climate harms in terms of subjectivity (i.e., who is affected by climate harms, as I elaborate in Section 3 and in the second row of Figure 1), spatiality (i.e., what is the territorial scope of climate harms, as I elaborate in Section 4 and in the third row of Figure 1), and temporality (i.e., how far in the past and future do climate harms stretch, as I elaborate in Section 5 and in the fourth row of Figure 1). As such, a reparative grammar of climate justice works with a reconfigured notion of entangled harms, that makes visible and legible the effects of climate change across distinct subjectivities and spatio-temporalities.

To illustrate my point, let us return to the Torres Strait Islanders petition where the Australian government invoked the nature of climate harms as a ‘global phenomenon arising from myriad acts committed by innumerable private and State entities over decades that are unquestionably beyond the jurisdiction and control of [one] State’.Footnote ³³ Instead of serving as a justification for inaction and a perpetuation of injustice, the diffused nature of climate harms could serve instead to ground a notion of entangled harms to be translated into specific places and peoples. A grammar attuned to dislocation and diffusion – with a vocabulary detached from the confines of causality that narrowly attribute actual and potential or foreseeable harms to single, individuated perpetrators and victims – enables reconfiguring and broadening the material boundary of climate justice. In this sense, the dispersed nature of climate harms would not be weaponized against vulnerable victims, but used by them to widen their claims for repair across the multiple spatio-temporalities through which they have been harmed. The entangled nature of climate harms enacts a shift in sensibility, in reckoning and in healing, that recognizes the history and multiplicity of ‘transversal’ and ‘continuing’ harms.Footnote ³⁴ This shift, I argue, goes hand in hand with reconfiguring the boundaries of subjectivity, spatiality, and temporality of harm. It is to these intertwined points I turn next.

3. Reconfiguring the ‘subjects’ of climate harms

Who constitutes a ‘subject’ of rights in a climate-changed world is a question that has attracted much attention over the past decades. On the one hand, the category of human victims of environmental and climate harms has been broadened through a recognition of a self-standing human right to a healthy environment and a safe climate. This was concretized with resolutions adopted by both the UN Human Rights Council and the UNGA in 2021 and 2022 respectively.Footnote ³⁵ With the recognition of a stand-alone substantive right to a healthy environment and a safe climate, less stringent rules and procedures must now be fulfilled to link environmental and climate harms to violations of justiciable rights. On the other hand, the category of right-holders has also been expanded to nonhuman victims, whenever ‘rights’ are granted to ‘natural’ entities. After decades of mobilization, the granting of rights to so-called ‘nature’ is now widely seen as the vanguard of environmental and human rights law. This is evident in domestic jurisdictions – with 39 countries having adopted constitutional, legislative, or policy measures recognizing ‘rights of nature’ as of 2022Footnote ³⁶ – and in regional and international settings, where developments on ‘rights of nature’ are also being proposed.Footnote ³⁷ As of today, ‘rights of nature’ have been recognized by many domestic courts,Footnote ³⁸ while international human rights mechanisms such as the Inter-American Court of Human Rights (IACtHR) have done so in a declaratory form or as part of Indigenous cosmovisions.Footnote ³⁹

Both trends – of recognizing a self-standing human right to a healthy environment and a safe climate as well as nonhuman ‘rights of nature’ – are often articulated in relation to rights of ‘future generations’, thereby further extending the category of climate harms to both living and not-yet-living human and nonhuman subjects. By way of illustration, in the Torres Strait Islanders petition, the applicants argued that ‘[f]uture generations, including the [Aboriginal] children named in the complaint, have a fundamental right to a stable climate system capable of sustaining human life, based on the right of the child to a healthy environment’.Footnote ⁴⁰ They also invoked an ‘intergenerational element of cultural transmission’ to safeguard their ‘ability to transmit their culture across generations’.Footnote ⁴¹ In the Sacchi petition too, the applicants contended that ‘the climate crisis is a children’s rights crisis’ – a question of ‘intergenerational justice for children and posterity’.Footnote ⁴² The applicants stressed that ‘the scope of the climate crisis should not be reduced to the harms of a small number of children’ since ‘[u]ltimately, at stake are the rights of every child, everywhere’.Footnote ⁴³ Figuratively, in relation to climate harms, children stand in ‘quantum superposition’, being both of present and of future generations.Footnote ⁴⁴ A noticeable reconfiguration of the subjective boundary of climate harms is thus broadening its scope from present to future generations’ rights of both human and nonhuman victims, thereby shifting attention from a traditional anthropocentric grammar of climate justice limited to actual human victims, to a more progressive grammar that attends to the rights and well-being of human and nonhuman species across time (as illustrated by the passage from the first to the second column in the second row of Figure 1).

I see, however, three main risks with such extensions of legal subjectivity, in particular with an inclusion of nonhumans or natural entities in the category of legal subjects. First, turning natural entities into ‘subjects’ risks disavowing their relational dynamism and agency, and hence also their inherently de-individualistic nature. The entity being protected, in other words, is cut-off from its milieu as it gets reified as a self-possessed, autonomous, and individualized ‘subject’ of rights. Rather than focusing on the rights of an abstract autonomous entity, what matters are the relational and symbiotic processes that sustain its living ecology. Attending to the cyclical, metabolic, and flowing dynamics of ecological processes – instead of the protection of delineated or bounded entities in isolation from the milieu in which they thrive – demands a grammar attuned to more-than-human concerns and care for liveable conditions. Liveable conditions – or what Achille Mbembe describes as conditions of ‘planetary habitability’ – are cared for when the agency of nonhumans, which both enables and constrains that of humans, is attended to.Footnote ⁴⁵ This is precisely what is at stake with the invitation to think of human and nonhuman agency as entangled.Footnote ⁴⁶ Against a re-inscription of liberal ideals of autonomy and individuality, more-than-human approaches to human-nonhuman relations emphasize the constitutive and disruptive role that nonhuman agency plays in enabling human agency (and vice versa).Footnote ⁴⁷ What matters from a more-than-human perspective, then, are the living – emergent, dynamic, immanent – ecologies that bind and unfold from human and nonhuman relations across matter, space, and time. In contrast, granting rights to ‘nature’ or ‘natural entities’ risks pushing in the opposite direction, by insisting on the autonomous legal status of nonhumans – a status that often only appears for nonhumans with a particular functional, aesthetic, or sentimental value to humans themselves.

The second risk I sense with an expansion of legal subjectivity is the reification of the human being itself as an autonomous and individualized subject of rights – an image now projected onto nonhumans. This original ‘subject’ of law and of rights is grafted on an ideal-type figure of a free, self-possessed, and autonomous human being. In the modern legal tradition, this subject was contrasted to nonhuman objects of law that could be owned and appropriated – not only non-human lands, natural resources, and animals, but also in-human chattel slaves, Native, and Aboriginal peoples once considered less-than-human. As Sylvia Wynter noted: ‘[t]he indigenous, the unchosen, was to be transformed from the human subject of his own culture into the inhuman object of the European culture’.Footnote ⁴⁸ The liberal category of the legal ‘subject’ cannot be disentangled from these lineages. Including nonhumans into this category risks therefore disavowing – rather than confronting – these underpinnings, and cast a shadow on the constitutive exclusion of ‘non-White’ subjectivities from this category.Footnote ⁴⁹ As Zakiyyah Iman Jackson warns: a hasty ‘move beyond the human’ presents the risk of ‘mov[ing] beyond race, and in particular Blackness’.Footnote ⁵⁰ An expansion of legal subjecthood that does not reckon with and desediment the ontological assumptions that underlie this apparatus might conceal the racialized foundations of the modernist ordering of relations between ‘subjects’ and ‘objects’ of law.

Finally, I see a risk in overlooking unequally distributed harms when speaking of ‘future generations’ as unqualified ‘climate victims’ (a point to which I return in Section 5). With human rights mechanisms now recognizing not only actual but also potential and foreseeable climate harms as valid grounds of admissibility, so too are the victims of such harms shifting from strictly living to non- or not-yet-living-human subjects and right holders (as illustrated by the passage from the first to the second column in the second row of Figure 1). Yet, by expanding the scope of victims of climate harms when invoking the rights of ‘future generations’, these projected ‘subjects’ tend to be framed in abstract and homogenous terms. As Stephen Humphreys observes: ‘[f]uture generations rhetoric calls up a pair of unfeasible trans-historical subjects – a concrete populace in its global entirety facing an abstract multitude across eternity – and posits a relationship between them that is neither feasible nor even plausibly imaginable’.Footnote ⁵¹ In addition to this trans-historical abstraction, a ‘fetish of unity’ – to borrow a term Claire Colebrook uses in reference to victimhood in the Anthropocene more generallyFootnote ⁵² – lingers when speaking about ‘victims’ of climate harms of present or future generations, which disavows the inequalities that affect some beings more than others (both now and tomorrow). Speaking of unqualified ‘climate victims’ risks therefore turning a blind eye to broader and intersectional issues of climate justice, and notably the problem of race. As Axelle Karera warns indeed, a universalizing narrative of climate victims erases racially driven forms of victimization between ‘climate privileged’ and ‘climate precarious’ beings along specific lines of colonial geography.Footnote ⁵³ At the domestic level, racial biases and blind spots underpin even successful climate litigations, as evidenced by the neglect in the Dutch Urgenda case to even mention the distinctive vulnerabilities to climate change that Dutch Caribbean island(er)s suffer from.Footnote ⁵⁴ On 11 January 2024, eight inhabitants of the Dutch Caribbean island of Bonaire filed a case with Greenpeace Netherlands against the Dutch government, accusing it of violating their human rights and demanding it does its ‘fair share’ to limit global temperature rise to 1.5°C by reaching net-zero by 2040, and helps its most vulnerable territories adapt to the impacts of climate change.Footnote ⁵⁵ At the international level too, the Torres Strait Islanders petition is a case in point, where the state’s neglect in climate adaptation and mitigation programmes for the region and its inhabitants – who constitute only 0.14 per cent of the total population of Australia, yet count among its most vulnerable people – also results from a distancing, invisibilization, and ‘othering’ of remote climate victims, in comparison to the ‘homeland’. Tellingly, while the petitioners invoked their particular vulnerabilities as Aboriginal inhabitants of a low-laying island that risks being inundated and hence uninhabitable in the coming decade due to the inaction of the state, the latter invoked a colour-blind defence of its commitment ‘to protect Australian children’.Footnote ⁵⁶ But a generic reference to ‘Australian children’ erases the historical and material differences between settler Australians and Aboriginal communities on whose land the former live. No attention was paid, in other words, to the colonial history that binds the Torres Strait region to Australia in particular ways, which should in theory trigger a different set of obligations towards the islanders.Footnote ⁵⁷ These problems are far from new. The invocation of a generic universal ‘human’ referent is recurrent in human rights law, and today widely underpins discourses on the Anthropos-cene. Taken together, what these three sets of risks reveal is that a shift from a traditional to a progressive grammar of climate justice articulated in relation to living and not-yet-living human and nonhuman subjects and right holders, risks entrenching endemic inequalities that determine who is forced to move and who has the privilege of keeping their homes and nations.Footnote ⁵⁸

What is more, as Dipesh Chakrabarty reminds us, whether climate harms are blamed on states and transnational corporations that are ‘retrospectively guilty’ or those that are ‘prospectively guilty’ – considering that China has now surpassed the US as the largest emitter of carbon dioxide – is a question that is ‘tied no doubt to the histories of capitalism and modernization’.Footnote ⁵⁹ But Chakrabarty also invites us to critically investigate how the ‘global’ inequalities of ‘globalization’ differ from the ‘global’ inequalities of ‘global warming’. If the former demand to ‘zoom in to the details of intrahuman injustice’ to refuse the category of ‘the human as potentially the same everywhere’, the latter demand to ‘zoom out of that history – or else we do not see the suffering of other species and, in a manner of speaking, the suffering of the planet’.Footnote ⁶⁰ Indeed, climate harms also affect nonhuman beings who must cope with changing patterns of in/habitability and un/liveability due to sudden or slow-onset events like shifting temperatures, droughts, floods, extinctions, and infrastructural barriers. As of 2022, it was estimated that half of all species were already on the move because of land degradation and climate change.Footnote ⁶¹ Both nonhuman animals and plants are migrating due to changing climates.Footnote ⁶² Ultimately, the ability to live is threatened both by a warming globe and by material and immaterial infrastructures that unequally distribute a right to move. A reparative grammar for climate justice should therefore account for such historical intra- and inter-species injustices, to ‘care for each other across generations, borders and other barriers’, including ‘species barriers’, as Alexis Pauline Gumbs puts it.Footnote ⁶³

Against this backdrop, thinking with the notion of more-than-human care – rather than human and nonhuman rights – might enable better articulations of reparative climate justice claims (as illustrated by the third column in the second row of Figure 1). Against the first risk of separation and re-inscription of autonomy elaborated above, the more-than-human insists on relationality, dynamism, and entanglements. It conceives of humans and nonhumans not as strictly independent, but recognizes humans and nonhumans’ agency as emerging from and enacted through their encounters and asymmetrical power relations. Against the second risk of reification of an autonomous, individuated, and self-possessed ‘subject’ – whether human or nonhuman – as elaborated above, the more-than-human insists on a displacement of this modern ideal-type figure. It suspends and refuses liberal forms of subjectivity to open up a stronger sense of care for those historically excluded from the category of the ‘subject’. Finally, against the third risk of generic victimhood elaborated above, the notion of more-than-human care insists on situated placements of entangled harms attentive to uneven distributions of suffering and power to (re)act across and between species.Footnote ⁶⁴ Yet, to make sense of such situated placements and give flesh to a reparative grammar of climate justice, the notion of ‘territoriality’ needs to be reconfigured too, as I argue in the next section.

4. Reconfiguring the ‘spatiality’ of climate harms

While climate harms are planetary, they manifest at localized spacetimes. The spatial expression of climate harms only acquires social meaning through their taking place in local, situated, and embodied materializations.Footnote ⁶⁵ At first glance, rights-based approaches to climate harms can therefore seem particularly appropriate to bridge the planetary predicament of climate change with the everyday lived experience of its harms. Indeed, alleged violations of rights are inherently ‘event focused, time bound, and body bound’.Footnote ⁶⁶ As such, rights-based approach can strategically ‘scale down’ the planetary nature of climate harms and relate them to particular individuals and places.Footnote ⁶⁷ Yet, a rights-based approach is also cabined by static, fixed, and often colonially inherited delimitations of states’ territories. As with other regimes of international law, jurisdictional space in environmental and human rights law is circumscribed by cartographic co-ordinates that delimit states’ sovereignty as well as the reach of rights and responsibilities.Footnote ⁶⁸

Confronting these traditional territorial limitations, the push towards extra-territorial obligations appeared as a progressive strategy deployed in climate litigation.Footnote ⁶⁹ In light of the inherently transboundary nature of climate harms, human rights mechanisms like the IACtHR and the UNCRC recognized both ‘domestic and cross-border contributions to climate change and the carbon pollution knowingly emitted, permitted, or promoted by [a] State party from within its territory’, as sufficient grounds to establish jurisdiction.Footnote ⁷⁰ This entails an extra-territorial obligation of states and private entities to protect the rights of those beyond their territory in relation to environmental matters. But the extra/territorial binary at work here reinforces the centrality of territoriality as jurisdictional space.Footnote ⁷¹ Yet, the dichotomy of what harm registers as either extra- or territorial sits uncomfortably with phenomena like climate harms, since changes in the biogeochemical cycle of carbon inevitably exceed and disrupt this binary logic.Footnote ⁷² As Péter Szigeti argues, such cycles ‘evade and transcend not only property boundaries and national boundaries, but also the boundaries between living organisms, organic matter and inorganic minerals; and between solid, liquid, and gaseous forms of matter’.Footnote ⁷³ In contrast to a traditional territorial grounding of jurisdiction, a progressive extra-territorial one expands state and non-state actors’ responsibilities and obligations to adapt to and mitigate climate harms. Both of these grammars of climate justice, however, are unable to account for impacts of global warming that transcend a direct cause-and-effect rationality. If multiple and overlapping jurisdictions can be recognized for harms enacted through the actions and omissions of several states and/or non-state actors, direct causality and attribution remain determined by a territorial spatiality based on where the harms took place and materialized.

Fundamentally, I am not suggesting here that causality and attribution do or should not matter. They are and must remain essential, in order to hold actors accountable for harms enacted across subjects, space, and time. What I argue instead is that the ‘direct’ causality that activates and conditions attribution based on the territorial emplacement of harmful activities should be and in fact already are reconfigured in ways more attuned to the dynamisms of biogeochemical cycles today. These developments are reconfiguring the jurisdictional doctrine from the ground up, by de-territorializing and re-terrestrializing it. Let me take two examples from domestic tort law-based litigations to illustrate my point. In 2015, Saúl Luciano Lliuya, a Peruvian farmer who lives in Huaraz in the Peruvian Andes, filed claims with the support of NGO Germanwatch for declaratory and injunctive relief as well as damages in the District Court of Essen (Germany) against RWE – Germany’s largest electricity producer.Footnote ⁷⁴ Lliuya alleged that RWE, having knowingly contributed to climate change by emitting substantial volumes of GHGs throughout time, bore some responsibility for the melting of glaciers near Huaraz, thereby threatening the glacial lake of Palcacocha located above Huaraz to overflow and partially destroy his home. The district court dismissed Lliuya’s requests, arguing that ‘no “linear causal chain” could be discerned amid the complex components of the causal relationship between particular [GHG] emissions and particular climate change impacts’.Footnote ⁷⁵ In 2017, however, the Higher Regional Court of Hamm recognized the complaint as admissible. This appeal court is currently tasked to review the expert opinion on RWE’s CO₂ emissions and assess its ‘contributory share’ of responsibility in relation to the climate harms at stake. The determination of this ‘contributory share’ is worth quoting in full for its remarkable terrestrial or ‘planetary’ approach and understanding:Footnote ⁷⁶

1. a) The CO₂ emissions released by the defendant’s power plants rise into the atmosphere and, due to physical laws, lead to a higher density of [GHG] throughout the earth’s atmosphere.

2. b) The compression of [GHG] molecules results in a decrease in global heat radiation and an increase in global temperature.

3. c) As a result of the resulting increase in average temperatures, also locally, the melting of the Palcaraju glacier accelerates; the glacier loses extent and retreats, the water volume of Palcacocha Lagoon increases to a level that can no longer be maintained by the natural moraine. Both overflowing and breaching of the natural moraine and/or the two artificial dams must be considered.

4. d) The contributory cause of the defendant in the chain of causation shown under a) to c) is measurable and calculable. It amounts to 0.47% to date. A possibly deviating determined causation share is to be quantified accordingly by the expert.Footnote ⁷⁷

Consequently, the compensation should amount to 0.47 per cent of the total costs – the ‘same percentage as RWE’s estimated contribution to global industrial GHG emissions since the beginning of industrialization (from 1751 onwards)’ – amounting to a $20,000 contribution to a government project to stabilize the lake.Footnote ⁷⁸ This argument was justified by the reasoning that the parties stand in a ‘global neighbourly relationship’ despite living more than 10,000 kilometres apart. The concept of ‘neighbourly relationship’ – which is based on a property interference provision under Section 1004 of the German Civil Code – is usually invoked to seek relief from direct neighbours for actual or potential harm to their property. This can involve a nuisance relating to environmental pollution if claimants can prove their neighbour’s responsibility. In this case, however, the lawyers ‘expand[ed] the legal conception of neighbourliness to encompass relations across the planet: as climate change connects RWE and Saúl, it makes them neighbours’.Footnote ⁷⁹ As Noah Walker-Crawford holds: the ‘claim against RWE stretches Section 1004 [of the German Civil Code] across a planetary scale’.Footnote ⁸⁰ While the case is still pending and it remains uncertain how the German judges will address these evidentiary questions, they conducted a site-visit in the Andes in May 2022 to assess the level of risk posed by the melting glaciers and possible overflow of Lake Palcacocha to Lliuya’s home.Footnote ⁸¹ What this case shows is therefore a transformation in establishing jurisdiction by reconfiguring the extra-territorial boundary of climate harms through a terrestrial lens. A reparative grammar of climate justice articulated along those lines can hold major contributors to climate change accountable by re-pairing their responsibilities and the harms incurred across a ‘planetary’ scale.

In a similar vein, in July 2022, four inhabitants of the Indonesian island of Pari lodged a lawsuit against the Swiss-based cement producer Holcim – the world’s largest manufacturer of building materials.Footnote ⁸² In Asmania et al. v. Holcim, the plaintiffs’ demands are threefold: that Holcim reduces its CO₂ emissions by 43 per cent by 2030 (to align with the 1.5° degree target); that it co-finances adaptation measures on Pari (such as mangrove plantations); and that it pays ‘loss and damages’ for its role in the climate crisis, the amount of which was calculated as proportional to Holcim’s contribution to overall climate damages (namely a total of 0.42 per cent of all global industrial CO₂ emissions since 1750, and of 0.48 per cent between 1950 and 2021).Footnote ⁸³ Like in Lliuya v. RWE, a move from an extra-territorial approach to a ‘planetary’ or terrestrial one is observable in this case, since it is not Holcim’s direct activities in Pari that matter to establish extra-territorial jurisdiction, but the implications of Holcim’s general activities and its overall role in the accumulated stock of carbon in the atmosphere over time, which serves to account for its responsibility. Holcim’s obligations, like RWE, are here located on the scale of the biogeochemical cycle of carbon and its planetary or terrestrial dynamism, rather than based on the extra/territorial activities of transnational corporations, as observed for example in litigations involving the Bille and Ogale communities against Shell’s activities in the Niger Delta.Footnote ⁸⁴ Far from diluting the responsibilities of state and non-state actors across space and time, what this analysis shows is that the dynamisms of ecological processes across planetary scales demands different ways of conceptualizing and articulating climate justice claims. A move from a traditionally territorial to a progressive extra-territorial grammar of climate justice is now supplemented by a more radical, transformative, reparative grammar of climate justice expressed in terms of the terrestrial (as illustrated by the third row of Figure 1).

This jurisdictional extension is one way of grounding a planetary sensibility and terrestrial understanding by reconfiguring legal concepts and actions. This is, more generally, a conceptual confrontation with law’s inability to account for the dynamic, cyclical, and agential processes of ecological concerns, of which transboundary climate harms are only one example. This blind spot has long been deplored by Indigenous scholars who drew attention to how Euro-Western legal frameworks erased Indigenous cosmologies where such relational perceptions on spatiality are prevalent.Footnote ⁸⁵ In an attempt to overcome the territorial cuts of traditional cartographic and jurisdictional constraints, today a revitalized materialist turn in terrestrial theorization highlights the relational and more-than-human dynamisms of ‘terrains’.Footnote ⁸⁶ A growing interest in non-static, vertical, and volumetric qualities of ecological processes across new spatial heights and depths – from the atmosphere to the subterranean – is emerging.Footnote ⁸⁷ In this vein, Bruno Latour called for a displacement of territorializing to terrestrializing geopolitics through the lenses of the ‘critical zone’ – or the Earth’s crust, outer layer or ‘envelope’ from vegetation canopy to the soil and groundwater, which supports all discovered life on Earth.Footnote ⁸⁸ If territorial thinking is limited to human affairs, terrestrial thinking relates to more-than-human concerns, where human and nonhuman agencies are entangled in the re/production of un/liveable conditions of in/habitability on Earth. In contrast to territoriality, then, terrestriality ‘modif[ies] the very definition of the land on which politics take place’ and requires ‘another placement for science, another definition of law and sovereignty, another understanding of how entities overlap’.Footnote ⁸⁹

A reparative grammar of climate justice attuned to such terrestrial dynamics of climate harms could account for harms that exceed direct causality narrowly based on extra/territorial emplacements. This would help materializing connections, links, and relations where law tends to abstract, disavow, and invisibilize them – in the eyes of those who can afford this invisibilization, not being subjected to its violence, and thus ignoring at the attachments that compose it. Attention to how material and immaterial infrastructures – including legal ones – structure life, should also extend to nonhuman lives. This is inherent to a planetary or terrestrial sensibility, and aligns with what Maan Barua calls a ‘wider infrastructural ontology’ that moves beyond anthropocentric familiars and generates new analytical openings attentive to more-than-human living conditions.Footnote ⁹⁰ Alexis Pauline Gumbs showed, for example, how the lives of marine mammals are entangled within global transport shipping infrastructures, the propellers of ships, their ballast water, and the noise pollution they cause.Footnote ⁹¹ Attending to the unequal distribution of human and nonhuman life and death as entangled within im/material infrastructures terrestrializes legal thinking across planetary dimensions. If legal infrastructures and regulations aim primarily at governing human in/actions, they also determine those of nonhumans: their migratory routes, their breeding places, their conditions of habitability. Traces of such terrestrial legal frameworks can be found, for example, in EU conservation laws, where legal regimes of protection and conservation move with or follow the movement of endangered species, regardless of territorial boundaries. As Arie Trouwborst argues:

Such terrestrial reconfigurations of legal concepts and jurisdictional grounds are thus tied to a relational and more-than-human spatiality, and attend to the spatial infrastructural entanglements of the global extractivist economy. As such, a reparative grammar of climate justice attuned to the terrestrial dynamisms of human and nonhuman actions enables to re-establish, re-visibilize, and re-pair relations between ‘the land we live on’ and ‘the land we live from’.Footnote ⁹³

Terrestrializing claims to climate justice, then, might help shift the perception of the land within which legal obligations take place, by requiring another placement and understanding of harms attentive to how living conditions emerge and get distributed across species and spatio-temporalities. This, I argue in the final section of this article, goes hand in hand with a reconfiguration of the temporality of climate harms.

5. Reconfiguring the ‘temporality’ of climate harms

As perpetually deferred phenomena, the materializations of climate harms fit uncomfortably with the temporality of human rights claims, where violations are usually either established after a harm has already occurred, or there is a real risk of an imminent rights violation. As addressed in Section 2, this has become one of the most contentious points in climate litigation today, since a finding of a rights violation tends to depend on some kind of harm having already materialized. In the Torres Strait Islanders petition, for example, the Australian representatives argued that:

While rights-based approaches to climate harms serve as a powerful rhetorical device – where ‘more and more people … locate themselves amid a progressive temporality marked out in human rights terms to envisage themselves moving away from rights-infringing pasts towards rights-respecting futures’, as Fleur Johns puts itFootnote ⁹⁵ – they present difficult hurdles in climate litigation, where violations of justiciable rights could traditionally only be claimed after identifiable victims had directly been harmed.Footnote ⁹⁶ The language of rights thereby offers either a temporality of linear progression, where the present is situated between a troubled past and a desired future, or a temporality of harm on a spectrum between a near past, a measurable present, and a foreseeable future. This is evident in traditional rights-based climate litigation, which aims to intervene here-and-now, responding to harmful past occurrences yesterday, to ensure rights-respecting futures tomorrow.

This traditional grammar of climate justice, however, has significantly shifted towards a more progressive one that considers the rights of future generations (as illustrated by the passage from the first to the second column in the fourth row in Figure 1).Footnote ⁹⁷ This invocation of future generations’ rights in relation to climate change, however, tends to express a temporal ideal of nearness that seeks to safeguard the rights of the children and grandchildren of today’s generations. This bias toward an empathic proximity is evident in the following quote by John Knox, as former UN Special Rapporteur on human rights and the environment:

A dual proximity transpires from such framings: a temporal proximity on the one hand, where future generations’ rights are tied to those who are already present today (‘our children and grandchildren who are already here’), and a kinship proximity on the other hand, where future generations’ rights are tied to direct relatives (‘our children and grandchildren who are already here’). This proximity entails a disconnection from distant ‘others’.Footnote ⁹⁹

While framed as an expression of the temporal ambition of rights-based approaches to climate change, a disjunction between this image of a near or proximate future and the ‘deep time’ implications of climate harms is evident.Footnote ¹⁰⁰ The enduring manifestations of climate change are particularly daunting in light of the longevity of CO₂ in the atmosphere, considering it would likely take 400,000 years (or 16,000 generations) for atmospheric CO₂ to return to pre-industrial levels and possibly 4 million years (or 160,000 generations) for the Earth to recover living conditions preceding the ongoing sixth mass extinction of species.Footnote ¹⁰¹ What is more, it has been estimated that if GHG emissions would stop today, their delayed effects and long-term feedback loops would still emerge in 1,000 years from now.Footnote ¹⁰² These phenomena evidently exceed any legal scheme of responsibility. Clearly, thinking about time at Earth magnitude is utterly uncanny and unintelligible in human timescales, including those of law.Footnote ¹⁰³ Of course, the disorientation that transpires from such temporal concerns cannot – and was never meant to – be addressed in human rights registers. Yet, reckoning with the longevity and durability of climate harms and their implications beyond the human species can shift attention to different registers of care and concern. A rights-based approach to climate harms therefore reveals a form of ‘chronocenosis’ – or time as conflict – that activates contradictory regimes of temporality: the deep time of geology, extinction, and climate change on the one hand, and the ‘presentist’ time of legal thought and action on the other.Footnote ¹⁰⁴

In addition to this temporal disjunction, an over-emphasis on ‘presentist’ concerns tends to turn a blind eye to historical events on the basis of which climate harms keep unfolding today. As Elizabeth Povinelli puts it, climate change can best be thought of as an ‘ancestral catastrophe’ that results from violent historical processes forming the present, namely ‘the different toxic accumulations of racial and colonial catastrophes’.Footnote ¹⁰⁵ If the entanglement of existence is embedded in legacies of racial and colonial histories that keep lingering with the living (both human and nonhuman), then the enduring aftermaths of their haunting harms – or, drawing on the work of Christina Sharpe, their ‘residence time’Footnote ¹⁰⁶ – underpin the coexistence of humans and nonhumans.

What would it mean, then, to develop grammars of climate justice in temporal registers attuned to the backdrop of this anti-Black world, where the possibility of existing as a ‘subject’ in the eyes of the law is only given to some, at the expense and exclusion of those who live ‘in oceanic suspension’,Footnote ¹⁰⁷ in places of ‘not belonging’,Footnote ¹⁰⁸ whose lives today remain entangled in the ‘afterlife of slavery’, as Saidiya Hartman puts it?Footnote ¹⁰⁹ What would it mean, in other words, for the dispossessed to have to act with and against the law, in a world order where one’s existence has been refused, made fungible and disposable?Footnote ¹¹⁰ Could climate policies and litigation strategies attend to the sustained existence, survival, and healing of those whose very possibility of being and becoming in this ‘total climate’ of anti-Blackness, has been suspended in time?Footnote ¹¹¹ As it stands, both the traditional and the progressive grammars of climate justice cannot register the historical ancestral harms at stake.

Instead of a linear temporality that stretches the present into a future that is already given, a reparative grammar of climate justice would attend to the enduring temporality of climate harms (as illustrated by the third column of the fourth row in Figure 1). An enduring temporality works with a paradoxical time of suspension – a time not passing, where care extends into ancestral harms and their ongoing afterlives, for a distinct futurity to be opened, and be kept open. As Karen Knop and Annelise Riles have argued, reckoning with grave historical injustices that are spatiotemporally diffused demands a poly-temporal understanding of legal responses, where closure is never brought once and for all, and conflict resolution techniques remain contingent, particular, and open.Footnote ¹¹² The entanglement of harms throughout time displaces a linear, sequential, and progressive notion of temporality, and calls for reparative interventions that can never undo but help heal ancestral harms. If ancestral climate catastrophes and their ongoing unequal distribution of harms are best defined as ‘evils beyond repair’, then reparative work transpires as ‘a demand now for what is owed for what was taken, morally and materially, symbolically and spiritually’.Footnote ¹¹³ This demand includes a recognition of unforgivable wrongs that gave rise to a permanent debt – an ‘unpayable debt’, as Denise Ferreira da Silva calls itFootnote ¹¹⁴ – which, ‘while it can never be finally discharged, has necessarily to be honored before any common future of freedom can begin’.Footnote ¹¹⁵ If loss and damages differentially experienced among humans and nonhumans across space and time can never be fully repaired, restored, or compensated, then working with a sense of enduring temporality of climate harms reckons with the suffering of ‘those whose presence never counted, whose absence was never accounted for, their existence unable to be recounted – that which does not even leave a trace’.Footnote ¹¹⁶ To account for the ancestral violence and deep time effects that mark the unequal suffering enacted by climate harms, a move beyond the limited and sentimental registers of future generations’ rights could open a way towards a grammar of climate justice that makes sense of the enduring temporalities of ancestral events, against the backdrop of which the world of modernity keeps unfolding.