Relativistic Approach to ‘Climate Justice’ in the Paris Agreement

The Paris Agreement is the first international climate agreement using the term ‘climate justice’ (13th preambular recital of the Paris Agreement). ‘Justice’ means ‘impartial adjustment of conflicting claims’, ‘conformity to truth, fact, or reason’ (Gove 1986, 1228), ‘morally right and fair’, and ‘fair and reasonable’ (Pearsall and Hanks 2001, 992–993). It refers to the moral foundations of conduct, political institutions, distribution, or minimum standards for individual rights (Beitz 1999, 270). Justice has a strong normative component that persists independently of individual convictions.

The idea of objective criteria that define justice has caused and continues to cause heated debates across disciplines, within and beyond the climate context (Gajevic Sayegh 2018; Murphy 2019, 80–82; Mi et al. 2019). This analysis seeks only to clarify the term ‘climate justice’ in the context of the Paris Agreement, not to review one of the biggest questions of the humanities. Still, it should be complex enough to capture the problem of justice in the broader climate context, covering the substantive (distributional) and procedural dimensions of justice.

The justice theory of Amartya Sen (2009) is well suited to understanding the ‘climate justice’ of the Paris Agreement, even though originally, Sen's approach is based on natural persons, not states. First, like the Paris Agreement, Sen recognizes more than one measure for justice (Sen 2009, 239–241, 272–290, 298, 395). Second, his approach does not depend on a final answer to universal justice questions; Sen rather provides orientation on how to increase justice in situations of incomplete information and uncertain weights of different measures of justice (Sen 2009, 259, 266–267, 398–400).

Introduction

Climate change poses a formidable challenge in the 21st century, giving rise to complex issues of justice and equity within and between generations, as well as across global and economic divides (Doussa, Corkery, and Chartres 2007). Those least responsible for climate change often suffer the most from its impacts, with the world's poorest and lowest carbon-emitting countries facing heightened vulnerability. This exacerbates existing inequalities and disproportionately affects the poor, the disadvantaged, indigenous people, immigrants, and women—groups that are among the first to be impacted and the least equipped to adapt to a changing climate (Klein and Stefoff 2021; Kaur 2020).

The consequences of climate change manifest in more erratic and extreme weather patterns, resulting in chronic water, food, and financial insecurity for millions. This crisis further propels individuals into poverty, enflames conflict over depleting natural resources, forces migration, and compounds pre-existing gender discrimination (Matekair and Carey 2022).

Women, in particular, experience severe impacts on their livelihoods due to existing gender relations, including increased tensions within families and increased instances of gender-based violence. Droughts and flooding resulting from climate change contribute to food insecurity, pushing women and girls further into poverty and exposing them to transactional sex for goods, human trafficking for commercial sexual exploitation, and child and forced marriages (Njikho 2020).

Setting the Scene: Context in Snapshots from 2022, 2023, and 1900

Badin, Sindh, September 2022: She slaps her scrawny toddler across the face while she balances an infant on her frail hip. Tempers are running high in this building—sounds of shouting, slapping, screaming, and crying are recurring. It is a government school in the district of Badin, Sindh province, Pakistan. The school building serves as a shelter for flood affectees. Meals, medicines, and other aid are distributed sporadically by philanthropic initiatives, military men, political workers, religious groups, local landlords, or civil administrators. The food often arrives stale and causes illness. Approximately a thousand people seek refuge in a building whose sanitation facilities cannot keep pace. Some wish they had died instead of ending up here, while others choose to pick cotton from flooded fields, standing in toxic water for a higher wage, to try and escape this shelter.

Karachi, Sindh, August 2023: She works in the Korangi Industrial Area at a factory producing garments for a global clothing brand. She lives with her family in the Ibrahim Hyderi area of Karachi. Many of her neighbours are fisherfolk (Idrees, 2021). She also comes from a fishing community in Badin. Her family has not been fishing for over a generation. Water is either syphoned off by canals, barrages, and dams upstream, or polluted by untreated industrial waste. Fish are dying. Meanwhile, intimidation by Rangers, the Coast Guard (Shah 2005) and the Fisheries Department (Ahmad 2021) are thriving. In search of a livelihood, her family moved to Karachi years ago.

Introduction

The growing relevance of global administrative structures within transnational law is not an immediate space in which one would seek climate justice. The constraints of these structures have, in the past, prevented states from being able to achieve environmentally motivated regulatory changes. There are significant examples of corporate actors using investment treaties to protect their interests in the face of states’ environmentally focused law-making. However, there is a growing awareness of the environment in both treaty language and arbitral decisions in international investment law. An opening may be emerging for climate justice to extend into these global regulatory frameworks and even be elevated by the systems that had once constrained it. This chapter attempts to identify these openings.

Climate action, in its limited (albeit growing) possibilities within existing legal frameworks, is typically manifested by private actors bringing claims based on global, regional, or local climate concerns to courts. Despite the decidedly global nature of the issue, the litigation options are more common at the local and regional levels because of the laws available and jurisdictional limitations. Climate justice is often realized in domestic courts, applying local laws but often framed around broader international commitments. Many of these claims brought in the past years involve transnational litigants or issues, attempting to expose states’ or companies’ failures to implement environmentally sound policies (see infra chapter 12, Julia Stefanello Pires, ‘Leading Climate Cases Against Corporate Actors: Understanding Business Accountability for Human Rights Impacts Related to Climate Change’; for example, Milieudefensie et al. v Royal Dutch Shell plc., C/09/571932 / HA ZA 19-379, 26 May 2021; Urgenda Foundation v State of the Netherlands, HA ZA C/09/00456689, 13 January 2020).

Climate change has unequal effects on people in different parts of the world. Small Island Developing States face real and existential threats to their land and way of life on account of a crisis in which they have had little or no role to play, and with limited opportunity to take corrective action (Burkett 2015). Countries in Asia continue to be plastic havens for Europe, which for years has exploited weaker regulation in these regions. This has turned lands and oceans in Asia into toxic wastelands, while European countries continue to consume resources in an irresponsible and unabated fashion (Ellis-Petersen 2019). In 2023, we see the continued exploitation of critical minerals in the Democratic Republic of Congo, where there is a mineral race between the United States, Europe, and China (Kara 2023). This continued extraction has resulted in violence, war, and poverty and is often argued to be the result of a ‘failed state’ or ‘poor governance’ (Peša 2022).

However, this only tells a partial story. The existence of such extraction is on account of the ways in which people and communities have been marginalized as a result of a wide variety of economic, political, social, and structural factors on a global scale (Harlan et al. 2015). In fact, as Sultana argues, the root cause of much of the climate emergency that we are experiencing is on account of historical as well as ongoing exploitation of formerly colonized lands (Sultana 2022).

Introduction

Global companies develop as internationally integrated entities, but they are not subject to a common regulatory framework. Despite being among the main contributors to greenhouse gas (GHG) emissions, these companies do not have their activities regulated in relation to climate issues either (RUGGIE 2014, 13). Although they contribute to the causes of global warming (IPCC 2007, 449), they are not obliged to assume their own share of responsibility for GHG emissions, nor are they held responsible for the consequences and impacts of climate change. In July 2022, the United Nations (UN) General Assembly declared that the right to a safe, clean, healthy, and sustainable environment is a human right (UN 2022). This resolution also recognized that climate change poses serious threats to the ability of present and future generations to effectively enjoy all human rights.

Addressing the business responsibility to respect human rights, the United Nations Human Rights Council (UNHRC) unanimously endorsed the United Nations Guiding Principles (UNGPs) in June 2011. Although it does not specifically address climate issues, the UNGPs states that businesses have a responsibility to respect internationally recognized human rights, which includes not violating human rights and addressing any negative impacts their activities may cause (UN 2011). However, these documents are voluntary and do not provide any sanctions for parties who do not respect their terms and principles.

Introduction

Climate litigation has been defined as the set of judicial, administrative, or extrajudicial actions that are directly or indirectly related to the reduction of greenhouse gas (GHG) emissions (mitigation), the reduction of vulnerability to the effects of climate change (adaptation), the repair of damages suffered as a result of climate change (loss and damage), and the management of climate risks (risks) (Moreira 2021). As a subject of academic inquiry, it is a prominent field of study in numerous countries within the Global North, although it is a relatively recent and emerging area of study in Brazil.

According to Setzer and Vanhala (2019), there is an imbalance in academic production on this topic in the North and South countries. Nevertheless, comparative studies such as that of Peel and Lin (2008) reveal differences and similarities, as well as cooperative practices and reciprocal influence. The comprehension of the existing differences and similarities between countries of the Global North and South in the formulation and development of cases of climate litigation, as well as among countries of the Global South, is fundamental for the understanding of this phenomenon that has grown regularly and continuously. This theoretical and analytical approach becomes even more relevant when climate litigation is conceived as a potential instrument for implementing climate justice.

Introduction

Thirty-four years elapsed between climatologist James Hansen's 1988 testimony to the United States Congress, alerting the world ‘with 99 percent confidence’ that global warming was underway, and the 2022 Intergovernmental Panel on Climate Change (IPCC) report pleading that ‘It's “now or never”’ for nations to act to stave off the worst effects of climate change (U.S. Senate Committee on Energy and Natural Resources 1988; IPCC 2023). United Nations (UN) Secretary-General Antonio Guterres succinctly captured the severity of the emergency in declaring:

The ‘litany of broken climate promises’ and ‘empty pledges’ refers to the shortcomings of the most significant international climate efforts to date, including the 1992 United Nations Framework Convention on Climate Change (UNFCCC) and its annual Conference of the Parties (COP) meetings, the 1997 Kyoto Protocol, and the 2015 Paris Agreement, which all have failed to achieve ‘stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’ (UNFCCC 1992).

Everyone is familiar with algorithms and social media surveillance. What about farmer surveillance? The new ‘agricultural revolution’ is currently unfolding: drones, sensors, artificial intelligence (AI), and robots are put to the service of agriculture, fundamentally changing the way food is produced. This model of production is being disseminated rapidly, with states already adopting digital agriculture (or related) policies.

While agriculture specialists and social scientists have researched the benefits as well as the risks that digital agriculture presents, a legal analysis is missing, especially on the topic of the risks to human rights. In this chapter, I will be highlighting the projected effects of the spread of this technology, paying attention to the power imbalances, and potential threats to human rights and questioning the role of agricultural technology (AgTech) providers. First, I will be mentioning the benefits of digital agriculture, turning then to criticism of this technology, including, inter alia, issues of market concentration and climate justice. Second, I will be linking the criticism identified to risks to human rights, specifically the right to food. Finally, I will be contemplating whether a solution engaging the human rights obligations of AgTech providers based on business and human rights law is possible.

The Benefits and Risks of Digital Agriculture

First, it should be acknowledged that the development of digital agriculture fits into the existing model of technological and commercialized innovation (El Bilali 2018, 212). Namely, for years, private companies have been focusing their research and development efforts on intensifying agriculture, focusing on productivity and crops for developed countries (Stads et al. 2023, 126).

Persian was not the only language transformed by the demographic upheaval consequent to the formation of the Persian Empire. Other languages of the Iranic family, particularly Parthian and Bactrian, were reduced in ways quite similar to Middle Persian. Although we lack texts in those two languages contemporary with the Achaemenian Empire, this chapter argues that their uncanny similarity with Middle Persian in grammatical restructuring was due to similar demographic conditions and probably also by convergence through multilingualism. Counterexamples of Iranic languages later documented on the fringes of or outside of the former Persian Empire show that they were not affected by the same changes. The conditions prevailing in the Persian Empire were likely responsible for the similarity in type shared by Middle Persian, Parthian, and Bactrian.

In August 1914, when the First World War broke out in Europe, the Indian Branch of the St. John Ambulance Association (ISJAA) immediately started to organise relief provisions for the British Indian Army troops. With the sizable expansion of its pre-war ambulance and first aid agenda during the war, this non-state organisation ventured into various fields of humanitarian war work in the following four years; these fields were usually linked to, or seen as, ‘Red Cross work’. In colonial India, where until 1920 no ‘national’ Red Cross society formally existed, the ISJAA strikingly decided to fill the void. In 1914, it identified itself as the Red Cross representative in India.

This chapter shifts the focus to the humanitarian work undertaken by the ISJAA, calling for a more nuanced examination of the historical contexts surrounding the so-called Red Cross humanitarianism. Existing research has emphasised the global reach and significant impact of the Red Cross movement during the First World War, while often failing to acknowledge the contributions of other humanitarian actors who played a crucial role in providing relief.1 Historian Rebecca Gill has powerfully reminded us to ‘acknowledge the relevance of a multi-levelled history of the local, national, imperial, and international’ when it comes to understanding humanitarianism. However, she erroneously refers to the war participation of a Red Cross society in India when she actually means the ISJAA.2 By focusing on the latter's relief work, the chapter illustrates the existence of alternative humanitarian actors of significance in the provision of relief to soldiers during wartime in the British Empire.

State of the Art

The global Second World War caused major humanitarian catastrophes that necessitated relief for soldiers, military and civilian prisoners of war, as well as for other victims of the war, including refugees and displaced persons in Europe and in non-European war zones, particularly in Asia. To assist the ever-increasing needs of these diverse groups became a major task for established humanitarian actors, such as the International Committee of the Red Cross (ICRC), various national Red Cross Societies, the American Jewish Joint Distribution Committee and the Quakers. They could resort to organisational knowledge and experienced staff, and professionalised more and more their war-related relief work in the course of the ongoing conflict. However, just like during, and in the aftermath of, the First World War, the present global conflagration also saw the emergence of new humanitarian organisations, such as Oxfam and the Catholic Relief Service, that mobilised for special concerns or helped to facilitate potential political alliances. Regardless of whether the humanitarian organisation was an established or a new one, non-state relief agencies entered into close, often co-dependent relationships with states during the war. States understood aid as significant due to moral concerns, but also to safeguard their political, economic and strategic interests, and hence strove to control, guide and coordinate humanitarian activities during and in the aftermath of the war