Climate Justice for Tuvalu : Awarding Compensation for Loss and Damages caused by Anthropogenic Climate Change

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Climate Justice for Tuvalu

Awarding Compensation for Loss and Damages caused by

Anthropogenic Climate Change

Myriel Julie Mathez

990830-4349

Human Rights Bachelor Thesis 15 Credits

Spring Semester 2021 Supervisor: Patrik Baard

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Abstract

This thesis aims to enable the compensation for sustained Loss and Damage on Tuvalu through a principle conforming to the requirements of Climate Justice. By applying the method of conceptual framework analysis, the various concepts which form the larger frameworks of Climate Justice and Loss and Damage are identified and narrowed down to parameters. By applying the parameters of Loss and Damage, the facts of Tuvalu’s case are collected. The theory of Climate Justice is applied in the analysis to determine the requirements for compensation for Tuvalu and a concept, with which the duty to compensate can be fairly allocated. The thesis finds that the Polluter Pays Principle in connection to the Ability to Pay- and the Beneficiary Pays-Principle is best suited, since it considers both Tuvalu’s and the compensators side and thus fulfils the requirements of Climate Justice.

Keywords

Climate Justice, Compensation, Loss and Damage, Tuvalu, Polluter Pays

Wordcount

13.622

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Abbreviations

AOSIS: Alliance of Small Island States ATP: Ability to Pay

BP: Beneficiary Pays

CBRD-RC: Common but Differentiated Responsibilities and Respective Capabilities

CC: Climate Change CJ: Climate Justice

COP: Conference of the Parties GHG: Greenhouse Gases IJ: Intergenerational Justice

IPCC: International Panel on Climate Change LD: Loss and Damage

LDCs: Least Developed Countries

NELD: Non-Economic Loss and Damage PEA: Probabilistic Event Attribution PICs: Pacific Island States

PPP: Polluter Pays Principle

SIDS: Small Island Developing States SLR: Sea Level Rise

UNFCCC: United Nations Framework Convention on Climate Change WIM: Warsaw International Mechanism

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David Attenborough once called Climate Change the “biggest threat […] modern humans have ever faced” (UNSC, 2021). The mitigation of this challenge should have been the greatest concern across the world, but so little has happened, that this thesis will not be concerned with the fair and just allocation of the costs and burdens of mitigation or adaptation to Climate Change (CC) but with the next step: the compensation of Loss and Damages.

In the last years, an increasing number of devastating CC impacts were observed – especially on small and vulnerable states like Tuvalu, an island state in the Pacific which is literally sinking beneath the waves. This development coincides with the rise of the term Climate Justice (CJ) which acknowledges the inherent unfairness of the Loss and Damage and the exacerbation of inequalities occurring through CC. Often, the developing states, which hardly contributed to the overall emissions, suffer most of the harm, whereas the developed states having emitted most of the greenhouse gases (GHG), barely suffer from the impacts of CC. This discrepancy has led to the recognition of Loss and Damage (LD) as a third pillar in international climate law, determining LD as a matter separate from mitigation and adaptation. With the creation of the Warsaw International Mechanism (WIM) in 2013 the states took a first step to address LD however, the WIM does not impose explicit duties or award rights to compensation.

The fact that neither emissions nor impacts are equally distributed across the countries emitting and suffering from them is uncontested, but no progress has been made to tackle the matter of compensation. On Tuvalu this impasse manifests itself in the permanent struggle for basic Human Rights (HR) with no perspective for compensation, because responsible parties are stuck in a deadlock involving only political deliberations and without considering basic questions of justice. To prevent further violations of human rights on Tuvalu and provide a perspective, compensation has to be awarded.

1.1. Research Problem

The need for compensation is immediate and concrete, since the violations of basic HR through CC on Tuvalu are presently happening, however no

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international framework tackles the issue effectively. The lack of justice in international negotiations and political considerations obstruct progress and will lead to on-going HR violations as long as the issue of compensation is not tackled.

1.2. Aim

This thesis aims to identify challenges and possibilities related to the compensation of LD on Tuvalu by introducing and applying the theory of CJ to the matter. CJ requires the upholding of basic HR on Tuvalu and introduces standards for compensation which can be endorsed by both parties, considering both their claims and needs. Thus, the aim of this thesis is twofold, to achieve just compensation for Tuvalu and introduce principles of justice in order to break the political deadlock between parties.

1.3. Research Question

The generalized research question, which is guiding my thesis, is: According to principles of Climate Justice, how should compensation be awarded to Tuvalu for sustained Loss and Damages?

The question defines the issue of CJ as the basic principle with which to define and evaluate how and which compensation should be awarded to Tuvalu. The three main components mentioned here are CJ, Tuvalu and Loss and Damages and all have to be analysed in order to obtain a result relating to the compensation. One emphasis I would like to place beforehand is that the research problem, with its focus on the political deadlock, to why compensation has not yet been awarded should be seen as included through the theory of CJ. CJ should not only be applied to Tuvalu, but especially also when considering how to award the compensation – since there is more than one side involved.

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1.4. Disposition

To begin, I will provide an overview of the method; how I applied it to the material and how it was used to deduct the concepts of CJ and LD. The material section will provide an overview of the literature, the main concerns discussed in the thesis and briefly state what distinguishes the angle of this thesis from the previous research.

The subsequent part will provide the background information on the case of Tuvalu and the sustained harm. In the main part of the thesis the theory of CJ will be conceptualized and thereby establish the three main concerns of justice and the parameters which will be used to analyze and assess the claims of Tuvalu in the analysis. The sustained violations of the provisions of justice, the claims for compensation will be assessed in the analysis and the suitability of several distributional concepts to fairly allocate the burdens of compensation, will be discussed. The thesis will be concluded by providing a framework for compensating Tuvalu and adhering to principles of CJ, which hopefully could also be applied in practice.

The structure of the thesis differs from a ‘classical’ structure since I have moved the method to the front of my thesis. This is due to the fact that it sets the structure for the collection and assessment of the material and the background – to comprehend and be able to trace back the parameters in the background section, the method has to be known before. This also applies to the theory, especially since some of its concepts are used and referred to in the background. Here, I have chosen to consider the background before moving onto the theory, since it provides the necessary understanding of the case which is needed early on in the thesis to be able to grasp the full picture. However, this also leads to the fact that the justification for previously made assumptions will only be provided in the theory and not earlier.

1.5. Selection of the Case

Tuvalu is sadly the ‘perfect’ case to illustrate the urgency of dealing with the issue of compensation and why finding a solution for LD sustained through CC is crucial. It is one of the smallest states on earth, size and population wise

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with only 26 km2_{and around 11.000 inhabitants. Tuvalu consists of nine} islands with an average elevation of less than 2 meters above current sea-levels – hence it will be submerged within the next 50 to 100 years and become one of the first countries made uninhabitable by CC. Tuvalu is part of the Alliance of Small Island States (AOSIS) and has been at the forefront of combatting CC, especially with its calls for the restitution of LD and for the implementation of an international mechanism to address LD sustained through CC. Mitigation and adaptation measures are incapable of addressing these pressing issues and mere political considerations have not yet achieved any progress for Tuvalu. If it were possible to achieve a common ground on the base of justice and fairness, this would be an accomplishment for more states than just Tuvalu.

1.6. Relevance to Human Rights

Human Rights set the most widely known and accepted standards for the basic rights of each person on the globe. They are represented and reemphasized in every action of the UN and other international organizations and have permeated every part of the international community, who pledged to achieve HR for everyone. However, the impacts and consequences of CC are the biggest threat to the fulfillment of even the most basic HR for present and future generations, thus HR play a double role in this thesis. Their violations induce obligations to combat CC and they also provide a widely recognized minimal standard to be realized. This standard will be serving as the basic requirement of justice in this thesis, which will be substantiated later. Achieving a solution to the impasse in international negotiations on the compensation of LD on Tuvalu, will lead to the realization of HR even when threatened by a challenge such as CC.

1.7. Terminology

There are several concepts which I will work with in this thesis, some of which may have several meanings and therefore require to be defined:

Developed and developing countries: The UN differentiates between

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transition and developing countries. Tuvalu is placed in another subcategory of least developed countries (LDCs) and Small Island Developing States (SIDS). The differentiation in this thesis mainly serves to distinguish between countries whose economic developments have contributed a lot or little GHG emissions. (UN 2014: 144-150).

Climate Change: In this thesis refers to the changing atmospheric

conditions attributable to anthropogenic emissions which were emitted since around 1850, during the industrialization and through other human activities until now.

Harm: meaning emotional, (non-)economic or physical injury.

Loss and Damage: LD refers to the losses and damages (harm) induced

by CC, but not the meaning of compensation as the legal term ‘damages’. 1.8. Delimitations

I have not identified any ethical concerns, however I, as the researcher have some limitations, which became clear while working on this project. Since I have never been to, grown up on or have any other (personal) ties to Tuvalu, my approach to the issue is not on an emotional level but based on a scientific interest. I find it important to emphasize that my view, my perceptions and assessments of the harms are personal without a Tuvaluan background meaning that I do not have the same understanding of which values (especially the cultural ones) might be most important to retain for Tuvaluans. To still be able to provide a holistic account of the situation and remedy this shortcoming, I rely upon secondary sources to include the perspectives of Tuvaluans. However, this thesis should not be regarded as an account of what Tuvaluans ‘want’ but rather to what compensation CJ can award.

2. Method

I chose to already at this point in the thesis elaborate on the methods I used, to provide more clarity in the following sections, especially since the method plays a crucial role in the structure of literature review.

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I applied the method of conceptual framework analysis (CFA) developed by Jabareen to define and form the two main concepts of LD and CJ. The method was explicitly designed for “building conceptual frameworks for phenomena that are linked to multidisciplinary bodies of knowledge” (Jabareen 2009: 49). The method “generate(s) theories or conceptual frameworks” from “findings across qualitative studies” (Jabareen 2009: 51) by applying a grounded theory technique to “identify, and trace a phenomenon’s major concepts, which together constitute its theoretical framework” (Jabareen 2009: 53). I have chosen the method since it enables me to consider CJ and LD as the main concepts of the thesis, identify their different components coming from secondary sources of multidisciplinary backgrounds (social, atmospheric and climate sciences etc.). The product of this analysis is a conceptual framework of LD into which the findings of Tuvalu will be integrated and a “(unified) theoretical framework” (Jabareen 2009: 50) of CJ which will be applied in the analysis. Applying this method to CJ and LD enabled me to grasp their complexity and integrate their respective components as factors into my study, thus creating a framework I could apply. The material which was not touching upon either of these concepts, such as the data on Tuvalu, was analyzed by applying qualitative content analysis. The main concepts of LD and CJ (such as harm, attribution, aspects of Justice etc.) and were then already defined, thus the findings could be structured accordingly and integrated into the thesis.

Another important aspect to specify, is the combination of normative and argumentative components – meaning that the thesis cannot be categorized as being one ‘type’. The normative component encompasses determining which compensation Tuvalu should be awarded as a matter of justice. I have explicitly decided not to define the specific characteristics of this compensation (sum, goods etc.) in advance to keep the discussion open ended – which adds the argumentative component. The provisions of CJ and the aim for practical applicability require considering the compensating side and duties for compensation cannot be ascribed to them without any further discussion. Thus, I consider their side throughout the study and discuss the advantages and drawbacks of different concepts for compensation. This is represented in the qualitative content analysis by searching for and identifying dissenting opinions in the material.

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My decision to include only a single case, rather than conducting a comparative study is due to the large emphasis on the conceptualization of CJ as theory. Defining the conceptual framework of CJ to later apply it to the case of Tuvalu, is sufficient to achieve the aim of the research to combine theoretical and practical approaches and thus showing the extreme importance of solving the issue of compensation.

3. Material and Previous Research

This thesis relies upon material from various scientific disciplines, comprising scientific articles and books, reports of government agencies and the UN, statistics and newspaper articles. I have found and accessed the material via online search engines like Google Scholar or LibSearch, by using keywords similar to the ones of the thesis and specific questions or concepts which emanated during the research process. The limitations of the material are due to the fact that most scientific articles originate from developed countries and are only secondary accounts, thus posing a challenge to adequately include the account of Tuvaluans. The study of Betzold (2015) provided me with a less ‘processed’ accounts of Tuvaluans, by including the exact, but nevertheless edited, wording of interviews.

I have analyzed the previous research in light of conceptualizing the framework of LD and CJ therefore most of the selected articles touch upon the issues from different perspectives and each article often contributed a particular aspect to my study. Applying grounded theory led me to focus on conceptions of justice and CJ, as more generalized accounts (Caney 2020; Miller 2017) or detailed including components of CJ such as its historical background and relation to environmental justice and HR (Meikle, Wilson, Jafry 2016; Schlosberg, Collins 2014). The definition of CJ is a highly debated topic in the literature, with various inputs from different articles, thus the selection of its major components as theory is based on different accounts (Schlosberg, Collins 2014; Adler 2007; Gach 2019). Some major contributions for CJ were made by the article of Guo et.al (2019) dealing with the conceptualization of Global Justice and also referred to the concept of

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Intergenerational Justice (IJ) which was brought up throughout several articles.

The literature on LD mainly consisted of scientific articles and UN documents which focused on the identification and definition of major components of LD and practical issues, such as the problems of attribution, implementing effective policies and its mechanisms (Parks, Roberts 2006; Pottier et.al 2017, UN). Some specifically addressed issues such as Non-Economic LD (NELD) (Hirsch et.al 2017) and the legal framework of LD (Doelle, Seck 2020) which broadened the picture of the concept. Since I had already delved deeper into the material on the case of Tuvalu and CJ, the harm and impacts described there provided specific questions such as how, to whom and what should be awarded as compensation, when looking into the concept of LD. The literature could not provide any specific answers here but raised further issues touching upon questions of liability, responsibility and inequalities, suffered as a consequence of LD, which provided an important connection to CJ (Walliman-Helmer 2015). The issue of attribution, which had already been an issue for CJ regarding the nature of emissions as just or unjust, was discussed in the literature of LD from another angle by developing theoretical models and scientific solutions to allocate the LD to emitters and thus attribute emissions (Zellentin 2014; James et al. 2014; Caney 2012; Thompson, Otto 2015).

The abovementioned issues are also problems of Tuvalu, however the island was often only discussed as part of larger case studies thus, particularities, such as the special connection between the people and the land or the issue of being a disappearing state were brought up as generalized issues of SIDS (Kostakos, Zhan, Veening 2015; Adelman 2016; Betzold) and only rarely directly connected to Tuvalu (Hirsch et al. 2017; Campbell 2014).

The article of Shue (1993) should be mentioned separately here since it brings up very similar problems concerning the aspects of justice, attribution and parameters, by asking who should bear the costs of GHG emissions. The distinction to my study is, that his account is highly theoretical and focused on the mere development of concepts rather than their practical application. Moreover, he does not discuss terms of LD or CJ and methods for the scientific attribution of emissions (like PEA) since they, at the time were either not yet developed or relevant.

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To summarize, I hope that it became clear that while many articles touched upon similar issues and contributed many important aspects and insights to my research, several aspects of my thesis are relatively new in this field. This concerns the method which I applied to conceptualize CJ and LD, and especially the fact that I used CJ as theory to a apply to a specific case. LD has been discussed excessively and broadly by researches and some reports include specific assessments of LD in particular cases, however LD is often limited to the perspective of international conventions. I have tried to draw upon the understanding of LD within the international, legal, philosophical and practical context, which is reflected in the inclusion of NELD and the differentiation between different aspects of harm. Studies on Tuvalu were previously conducted but focused on the people as the ‘first climate refugees’ or the issue of state sovereignty and land loss. I included these as aspects as well, but my focus lies on applying CJ and discussing compensation for LD. This study shows that CJ can indeed be applied to a case and contribute if included in international negotiations – be a showcase of the practical and fair application of justice concepts.

4. Background

In this section I will present the relevant facts on Tuvalu, the threat of CC and discuss how the sustained harm is attributable to CC and the respective GHG emissions. I will start by defining the term LD which will provide the framework for the harm/LD on Tuvalu.

4.1. Loss and Damage: Framing and Context

LD has been discussed in relation to CC since the 1990s when the UNFCCC was first established (Kreienkamp, Vanhala 2017: 5). Already then, Vanuatu, as part of the AOSIS proposed an insurance mechanism to address harm caused by sea level rise (SRL), however it was not included in any official decisions and in the following years, since the focus was mostly on mitigation, the term LD nearly disappeared (Kreienkamp, Vanhala 2017: 5). It resurfaced in 2007 in the Bali Action Plan where it was first mentioned as LD in an

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international agreement (Kreienkamp, Vanhala 2017: 5). In the following years, LD was included in working programs and since the LDC were “becoming increasingly active”, formed coalitions and pressured for an establishment of an international mechanism of LD (Kreienkamp, Vanhala 2017: 5), in Doha 2012 the decision was made to develop the Warsaw International Mechanism (WIM).

The WIM was finally established in 2013 at COP-19 “to address loss and damage associated with impacts of climate change” (UNFCCC 2014: 6) through its three main functions; “(1) enhancing knowledge and understanding loss and damage and how to address it; (2) strengthen dialogue among relevant stakeholders and; (3) enhancing action and support on loss and damage(…)” (Kreienkamp, Vanhala 2017: 6). The WIM establishes several parameters which have become relevant in the discussion of LD, also with regards to Tuvalu; the focus on developing and LDCs as being particularly vulnerable, the focus on non-economic damage and on migration and displacement (Kreienkamp, Vanhala 2017: 6). The WIM provides a platform to address LD on a political level, but it does not have any legally binding mechanisms or provisions to address issues of compensation. The latter was an issue widely discussed and played a major role when drafting the Paris Agreement (PA).

The PA was drafted in December 2015 and is seen as a milestone in the fight against CC since it sets the goal of limiting the increase of global temperatures to 1.5°C. It also establishes LD as the third pillar of the UNFCCC, alongside mitigation and adaptation (Kreienkamp, Vanhala 2017: 7) with Art. 8.1 PA stating that the “Parties recognize the importance of averting, minimizing and addressing loss and damage associated with the adverse effects of climate change” (PA 2015: 12). The recognition of LD as being a third pillar was highly relevant for SIDS and developing states since LD cannot be “subsumed under adaptation” (Kreienkamp, Vanhala 2017: 7) or as ‘blame’ for its failure. The PA adds another important aspect in its preamble where it reiterates the Parties “respective obligations on human rights”, “intergenerational equity” and notes “the importance for some of the concept of ‘climate justice’” (PA, 2015: 2). The cementation of LD in the same international agreement as CJ and HR (Gach 2019: 7) are particularly relevant for this thesis. The PA was a milestone but also has its drawbacks.

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Tuvalu and other states still have no adequate means to address LD because the developed countries, notably the US, foreclosed the option of framing LD as a matter of compensation by saying that this would “kill the deal” (Kerry in Goodell 2015: 15). This was set down in §51 of the Paris Decision which gives effect to the PA, however it is important to note that while the language is “unambiguous” the decision can be amended in future negotiations and cannot preclude litigation in national courts (Kreienkamp, Vanhala 2017: 7). Relation to Mitigation and Adaptation

Establishing LD as third pillar made it clear that it does not fall under the terms of mitigation or adaptation, but that the need for it arose specifically due to their failure (James et al. 2014: 938). Distinguishing between LD and adaptation is difficult since both involve similar measures, but it becomes quite relevant when discussing the amount and allocation of compensation, as not to mistake them for ‘development aid’.

Walliman-Helmer differentiated between LD and adaptation by stating that “the goal of adaptation […] is to keep the risk of climate impacts within and acceptable or tolerable range” while the “goal of LD approaches is to diminish the potential negative impacts of loss and damage occurring” (2015: 473). Thus, adaptation is to be judged “by (its) perceived capacity to keep risk in an acceptable or tolerable range” (Walliman-Helmer 2015: 473) which, as soon as it is exceeded becomes LD. LD can act as motivation for adaptation and thus its own prevention, but since the goals are decisive, the measures can be the same, but attributed to different concepts. This is exemplified by migration and human mobility; both are attributable to adaptation as a normal part of the island life (Betzold 2015: 481) but can also be the cause and source of LD (Kreienkamp, Vanhala 2017: 7). The recognition that sustained harm is the failure of adaptation measures since it exceeded the ‘tolerable’ range raises two questions; how to define the range and who is the failure attributable to, which I will address in section 4.3.

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In this section I will introduce the case of Tuvalu, discuss the CC impacts it is exposed to, measures taken to combat them and the harm which occurs from CC impacts on the island.

4.2.1. Overview

Tuvalu is one of the smallest and remotest states on earth, its nine islands have a total land mass of 26 km2_{and it has a population of around 11.448 people.} The history of the islands is one of migration and colonization; the first people came in the 14th_{century AD from Samoa, Tonga and other Polynesian Islands} and around 400 years later a British ship ‘discovered’ the main island Funafuti and consequently in 1819 the Islands were named Ellice Islands. From 1850 to 1875 the Tuvaluans were victims of kidnapping and slaver traders and in combination with the introduction of European diseases, their population of 20.000 was diminished to around 3.000 with only a few hundred remaining after 1863 (BBC 2018: 3). Tuvalu, as Ellice Islands, was declared a British protectorate in 1892 and managed as a colony from 1916 until 1978 when it gained independence through a referendum. (BBC 2018: 3).

Tuvalu’s geography is dominated by water. Six of the nine islands are coral atolls grown on the edges of volcanoes (Parks, Roberts 2006: 348), only some have land-locked lagoons. The islands average elevation is less than 2 meters above sea level, meaning that the infrastructure is located on eroding shorelines and constantly exposed to the sea (Parks, Roberts 2006: 349). Only Funafuti has an airfield and a seaport and thus of the other islands cannot be approached by larger vessels since they do not have seaports, nor airfields.

60% of the countries surface is non-arable agricultural land where permanent crops such as dried coconut kernel (copra) are grown (BBC 2018: 1). Tuvalu is heavily reliant on imports for gas, ships and iron structures since it has no industry itself (CIA 2021). Its main income and, next to copra, the only natural resource, is fish from the reefs around the islands, which contributes up to 45% of its GDP (including the sale of licenses to foreign boats) (CIA 2021). This dependence on single goods in export and its high trade deficit, makes it particularly susceptible to the fluctuations of the world market. However, these vulnerabilities are not only attributable to its geography but especially land use and the deforestation are due to

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“extra-local” colonial demands and thus also remnants of colonialism (Parks, Roberts 2006: 350).

4.2.2. Climate Change Impacts on Tuvalu

Impacts and vulnerabilities often cannot only be attributed to one cause. The science to link or directly attribute the occurrence, intensity and strength of natural phenomena and weather events to CC now exists. However, these events often produce secondary impacts, often socially or financially, which cannot always solely be attributed to CC, but where e.g., the socio-economic predisposition of the state plays a large role. Another hurdle to identify the CC impacts on Tuvalu, is the lack of studies on SIDS where especially historical data is hard to obtain or non-existent (Betzold 2015: 482).

Slow-Onset Events

Slow-onset events occur over long-time scales and produce impacts such as: “increasing temperatures; desertification; loss of biodiversity; land and forest degradation; glacial retreat (…); ocean acidification; sea level rise; and salinization” (UNFCCC 2021: 1). All of these, except for glacial retreat, are happening on or around Tuvalu, and cause through their “ripple effects” and their secondary impacts even more harm, especially non-economic, than extreme weather events (Tschakert et al. 2017: 3,4). Also, Tuvalu’s “proneness to natural disasters” and environmental problems contribute to the exacerbated impacts of slow-onset events (Betzold 2015: 482).

Tuvalu is listed as one of the first countries (after the Maldives) whose existence as state is threatened by inundation through SLR (Sopoaga 2015: 2) by losing its territory. However, the islands will become uninhabitable long before they actually disappear: the intruding salt water, increased flooding and erosion of coastal land will destroy crops and pollute groundwater resources. These impacts will be magnified by the smallness and remoteness of the islands and render the islanders even more dependent on imports and foreign aid (Künzel et al. 2017: 10).

The ocean acidification and rise in average water temperature leads to coral bleaching – the corals die, their skeletons weaken, and growth is reduced

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or completely stopped. The reefs not only harbor the fish resources on which Tuvalu’s economy depends, but also contribute to the growth of the atoll (consequently the islands) up to several millimeters a year, in height and width. With SLR and increasing temperature the corals will die, the fish stocks disappear and biodiversity on the island be reduced (Künzel et al. 2017: 12) and the coastal erosion will have no natural adversary to counteract it. The land degradation and pollution of drinking water will lead to an increase of vector borne diseases which threaten the people on the islands and also, in addition to the other factors above, will reduce the attractiveness of Tuvalu as a tourist destination (Betzold 2015: 482). Thus, the burden on the economy will be even larger.

Extreme Weather Events

CC also contributes to extreme weather events such as hurricanes, high tides, floods, droughts, storms or cyclones. These are natural phenomena which also occurred before anthropogenic emissions impacted the atmosphere, however their strength and frequency increases with CC as well as their impacts. Tuvalu was not usually directly hit and exposed to tropical storms however since 1990, more than 15 cyclones hit the island directly and in 2011 an unprecedented drought occurred which led to extreme freshwater scarcity (Parks, Roberts 2006: 350). These events have a strong impact on Tuvalu’s infrastructure since it is located close to the shorelines which are eroding through SLR and most threatened by storms (Parks, Roberts 2006: 349). King-tides were always a part of life on Tuvalu; however, they have increased in frequency and strength, and regularly wash away more and more of the shore.

4.2.3. Adaptation Measures

To combat the coastal erosion and built resilience for extreme weather events, seawalls, which are physical barriers to protect the coast, were built and trees planted. However, seawalls may have negative impacts on other parts of the island, a short life-expectancy or fail altogether to provide protection (Tuvalu Ministry 2007: 35, 36). Some of the adaptation measures are solely short term and reactive to a particular stress such as the 2011 drought, where the water shortage caused the islanders to reduce and shift their water use or share their

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water. Another adaptative response in 2011 was the islander’s reliance on the government and foreign aids to alleviate their stress (McCubbin, Smit, Pearce 2015: 47) or the belief in God, which also was hindrance to adaptation since they did not resort to their historic adaptation measures (McCubbin, Smit, Pearce 2015: 51). Another response is migration, where threatened areas, or the whole island altogether are vacated. This sooner or later will be a necessity for Tuvaluans, but currently the migration can be more attributed to escaping the poor economic conditions rather than the impacts of CC (McCubbin, Smit, Pearce 2015: 52).

Important here is that measures to combat the impacts of CC always include more than physical changes to the environment and tackle more than only CC induced vulnerabilities. Also, while this thesis perceives CC as main problem, the Tuvaluan citizens and government may choose to concentrate the limited resources on other vulnerabilities which are not necessarily the main concern from a CC perspective. Sometimes, the measures themselves, such as migration or seawalls, can also induce more harm than alleviate it.

4.3. Definition of Harm – Loss and Damage on Tuvalu

To award compensation to Tuvalu, the LD which occurred has to be assessed. In neither the PA nor the WIM is the term of LD explicitly defined or aspects mentioned to be subsumed under it. Thus, I am drawing upon definitions in literature where LD is defined as ‘harm which exceeds what is tolerable’ (See Sect. 4.1). The limits of ‘tolerance’ are defined by the values (monetary or non-monetary) which are placed on the object or subject that has been harmed, in this case by Tuvaluans, and thus defines the severity of the harm. This value distinguishes loss from damage and whether it is ‘only’ a damage or a loss that occurred and can be different for each state, community and person. The “UNFCCC treats ‘L&D’ as a blended concept yet understands losses as irreversible in the sense that reparation or restoration is not possible” (Tschakert et al. 2017: 2), my usage of the term harm includes both loss and damage, however the distinction between them is highly relevant.

The irreversibility of loss and reversibility of damage is important to keep in mind when looking at the categorization of harm. Reversible harm is damage which can be amended (e.g. a house which can be rebuilt in full) while

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irreversible harm is lost and cannot be reversed or recovered (e.g. the sentimental value attached to the old house). Reversible harm can always be amended through compensation while irreversible harm may have components which are lost forever, but some which can also be alleviated through compensation.

There is no official framework to categorize harm since especially loss is hard to quantify (Tschakert et al. 2017: 3), however when considering compensation this has to be at least attempted. The recognition that harm has to include economic and non-economic values to grasp the full width and severity of the LD sustained, has provided a framework to categorize harm and opens the possibility to assess and include different options for compensation. Thus, I will analyze the economic and non-economic harm on Tuvalu. The ir-/reversibility will play a role when assigning compensation. Economic and Non-Economic Harm

Economic harm is easier to specify since monetary terms are understood everywhere. Simultaneously, this poses a challenge for values which cannot be defined in monetary terms especially since many of them are irreversible, thus losses. The economic impacts of slow-onset and extreme weather events on Tuvalu are various; lost income due to destroyed crops (Kostakos, Zhang, Veening 2014: 6), the cost of replacing them, the cost of damaged infrastructure, the lost revenue of farming and fishing during and after the events or the harm to tourism (Betzold 2015: 482). The burden of lost development is severe for several reasons and could also be seen as loss rather than damage; to attain the pre-disaster status, financial resources have to be allocated to disaster relief and thus diverted from other development projects, meaning that no steps forward are possible and further LD may be induced. The actual cost of CC induced harm on Tuvalu is difficult to calculate, but Cyclone Pam, which passed Tuvalu with a distance of over 1000 km in 2015, generated losses estimated to be 5% of Tuvalu’s GDP (Taupo, Noy 2016: 3).

The non-economic and economic impacts are often closely connected – Cyclone Pam displaced more than 45% of Tuvalu’s population (RNZ 2015) and their destroyed houses are a monetary factor, but they also have a sentimental value which goes beyond what can be calculated in monetary terms. Qualifying as emotional and psychological losses (Campbell 2014: 3)

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is when valued possessions were destroyed or lost, and the people’s safety was compromised. The same applies for the land, which is closely connected to their cultural identity. Land on Tuvalu cannot be bought or sold, it belongs to a group and is passed on from generation to generation, land and culture are “mutually constitutive” (Campbell 2014: 2). The land plays a cultural role, but also sustains livelihoods thus it constitutes an economic and non-economic factor. The threat of inundation concerns the whole nation and is feared as a complete loss of culture and knowledge (Hirsch et al. 2017; 15), loss of state sovereignty and therefore one’s dignity, citizenship and the fear of being treated as a second-class citizen in another state, are non-economic CC induced harms (Kostakos, Zhang, Veening 2014: 7). These fears have not yet become reality but still should be included when addressing compensation; fear induces psychological stresses and already changes behavioral patterns like migration – also it will become reality at some point and thus should better be addressed in advance. Non-economic harm is not forcibly a loss and thus irreplaceable but can also be a damage which cannot be calculated in monetary terms. Whether and how it is replaceable, or compensation can be awarded, depends on the entity who sustained it.

4.4. Attribution of Harm

The difficulty for the attribution of harm is its separation from the “baseline conditions” (Doelle, Seck 2020: 671). The challenge is to differentiate between the harm sustained through CC and the preexisting harm which was exacerbated by CC, such as remnants of colonization or other socioeconomic vulnerabilities (Wallimann-Helmer 2015: 474). Attributing the role of CC for the harm is important to assign the corresponding responsibilities. This section will look at the scientific conditions and challenges when it comes to the attribution of harm. The analysis will assess the aspects of the ‘faulty’ act (Sect. 6.3) and questions of assigning responsibility, blame and liability.

4.4.1. Causality

Climate science can calculate the exact emissions of emitter but the exact attribution of each emitted CO2-molecule to a particular outcome e.g.,

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Cyclone Pam, is not possible. The delayed impacts of historical emissions add to this difficulty – GHG now accumulate in the atmosphere because most of the historical emissions were absorbed by oceans and other carbon sinks, which are now satiated (Pottier et al. 2017: 2). Causality is a matter of scientific attribution, but the relevance connected to emissions such as, whether they are causal but morally acceptable, or if historical emissions should be counted like contemporary ones, depends on other factors such as discounting methods or differently justified concepts of attribution, relevant in the analysis.

The impacts of slow-onset events and the changes they induce, such as SLR, ocean acidification or increasing temperatures, have been monitored for centuries. The science observing the rising average global temperatures and linking increasing amounts of GHG has been developed for a long time and is extremely reliable. Consequently, there is a “widespread agreement that slow-onset affects can be reliably attributed to greenhouse gas emissions and other anthropogenic atmospheric forcings“ (Thompson, Otto 2015: 440). This allows for a causal link to be established between anthropogenic emissions and the slow-onset events happening on Tuvalu.

The science to attribute extreme weather events to human emissions bears more uncertainties than the one for slow-onset events (Thompson, Otto 2015: 440). Recently, the technology of Probabilistic Event Attribution (PEA) was developed which can calculate the quantity of the human influence on a specific extreme weather event, such as a drought (Thompson, Otto 2015: 440). Hence, it is possible to attribute anthropogenic emissions to damaging extreme events, a feat which was not possible before and has implications on how and why CJ is needed as a framework in international relations – it provides leverage beyond what was possible until now.

Some LD is caused by weather/climate induced phenomena which are not attributable to CC but to other socioeconomic factors. Even if the weather event can be attributed to CC, some harm can explicitly be ascribed to aspects not attributable to CC such as the violation of building codes e.g. the destruction of houses in a storm (even if it was stronger due to CC) built on sites declared as non-building site due to their exposure, or inappropriate behavior (leaving the house during a storm). Walliman-Helmer argues that LD irrespective of the source should be dealt with since it destabilizes the

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human system and it is in everyone’s interest that it should tackled (2015: 475), but this argument was then based on the non-attributability of harm to anthropogenic emissions and does not consider the missing causality between the harm and CC – thus that it would not be fair to award compensation for LD in this case.

4.4.2. Relevance of the Attribution

The causal attribution is highly relevant since questions of responsibility, liability and even blame will arise once an event, such as a particularly strong cyclone (Australian Government 2011: 3, 6), is explicitly attributed to anthropogenic emissions. Accusations can come from both directions; those suffering from the damage will seek to induce liability from those they find responsible for the event. Whereas the parties held responsible will seek to hold insufficient adaptation measures or mere “hard luck” accountable for the damage suffered (Thompson, Otto 2015: 448). This “colonial mistrust” (Parks, Roberts 2006: 342) between the northern and southern, or developed and developing countries (Kreienkamp, Vanhala 2017: 1) is important to dismantle before it leads to a stalemate between the countries. While a clear attribution produces a different moral standing and recognition (Thompson, Otto 2015: 448), especially for damaged countries, it also can provide for security for the developed countries not to be held accountable for more damage than they are responsible for. This is the essence of what I aim to achieve with my thesis and why it is so important that the case of Tuvalu receives attention not as ‘sad tragedy’ but by seeing future possibilities and opportunities to approach the issue from an angle which is just for everyone.

5. Theory of Climate Justice

In this section I will lay down the foundations for the theory of Climate Justice examine its background and provide an overview of its contemporary conception. Then, I will highlight the three main concerns of justice most relevant for the thesis and finally, focus on the operationalization of CJ by identifying parameters to analyze my findings.

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5.1. Overview

CJ has been discussed in philosophy and policy-making for some time, yet its emergence as a political term was triggered recently by the Paris Agreement (PA) and activist environmental groups. CJ stems from the realization that CC is a global human caused phenomena which challenges current natural and especially human systems across the world, which is why it focusses on nation states as actors and victims. The assumption that CC poses an equal threat to all is wrong and exactly what CJ aims to dismantle. Emissions do not respect borders (Roser et al. 2015: 349) and are distributed across the globe, but neither their distribution, their source, their impacts nor the threat they pose are equal for everyone. These inequalities raise the question of “what we owe one another” a principle underlying social justice (Guo et al. 2019: 512) which also dominates the concerns of CJ. CJ has strong links to environmental and global justice, its distinction to the former concern dimensions of scale and geographic specificity (Meikle, Wilson, Jafry 2016: 491) and to the latter the focus on the specific injustices which are connected to CC.

It is difficult to say whether a or the ‘theory of climate justice’ exists or if there is even the aim to develop one. Some authors characterize CJ as an “attempt at applied philosophy” to use “more or less ideal notions of justice to provide a normative framework for global climate change policy” (Schlosberg, Collins 2014: 365). Others define features of CJ by defining the injustices of CC, which surrounding the United Nations Framework Convention on Climate Change (UNFCCC) are:

CC is “(i) a fundamental issue of justice and equality, (ii) a problem that necessitates compensation for loss and damage to those most impacted, (iii) an issue that exacerbates existing gender, racial, social, and economic inequalities, (iv) a human rights issue instead of simply an environmental one, and (v) not an all-encompassing global issue that impacts all countries and

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peoples, but one of contextual impacts and vulnerabilities.” (Gach, 2018: 12).

These issues can be summarized under three different spheres of justice: distributive, corrective and procedural justice. In this thesis I use a rights-based approach to CJ meaning that the rights themselves define the content of distributive justice, their violation concerns corrective justice and which and how measures are taken to preserve them, is relevant for procedural justice. The “importance of procedural justice” (Schlosberg, Collins 2014: 369) is relevant since “lower income groups are […] less able to participate in decision making (…)” (Meikle, Wilson, Jafry 2016: 491) and without their inclusion justice cannot be achieved. There are several challenges to CJ, such as the correct attribution of GHG emissions and corresponding harms. This will also be an important issue when referring to issues of responsibility in subsequent parts of the thesis.

Motivation

I chose to apply CJ to the case of Tuvalu due to its specialization on climate issues. CJ focus on the specific impacts of CC on matters of justice and thus provides a better framework to accommodate the challenges of Tuvalu and find practical solutions. This was also supported by my personal interested to apply a theory which I had not yet seen being applied to a case. Also, since CJ has gained much more attention in the civil society thus I hope that the impact of the outcome of this study could raise more discussions.

5.2. Theories of Justice

Before focusing on the three fields most relevant to answer the research question – namely distributive, corrective and procedural justice – I have to briefly mention why I will not include intergenerational justice (IJ) even though it was frequently mentioned in the literature. IJ is highly relevant for CJ since it concerns what current generations owe to future ones and what they cannot put in jeopardy without impairing themselves (Caney 2012: 295). In this case I will not address IJ for two reasons: firstly, more than 47% of Tuvaluans are under 24, the average age is 26,6 and average life expectancy

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is 68,07 years (calculated based on CIA 2021: 4,5). Thus the ‘sinking process’ and especially the dooming inhabitability of the island will happen within the lifetime of more than half of the Tuvaluans and each newborn from now on.

Also, more variables such as the extent of LD and the sustained harm, can be determined when focusing on compensation for the current generation. Secondly, the concern for future generations in IJ stems mostly from the calculation of allowable emissions – thus how much we can emit now without burdening the coming generations disproportionally – this thesis, however, focusses on compensation for the current damage. In the following, I will discuss the three aspects of justice which are the main principles of this theory.

5.2.1. Distributive Justice

Distributive justice is very broad and concerns the just distribution of burdens and benefits (Caney 2020: 4). Here it refers to the distribution of resources via an agent and parties who have claims to what is being distributed (Miller 2017: 5). In order for this system of rights, claims and duties to work it requires the definition of how they should be distributed justly and could even be extended to include a liability as well (Zellentin 2014: 260). Hence, distributive justice is rooted in every system concerned with the (re-)distribution of resources such as contemporary political and social institutions or tax systems. It provides the moral guidance for political structures and processes since they have a fundamental impact on people’s lives and wellbeing (Lamont, Favor 2017: 1).

To comply with this function, more specific criteria on how and to whom justly allocate the resources are needed. Miller introduces the terms equality, desert and need (2017: 5) as commonly used, but several articles also put a strong emphasis on Rawls Theory of Justice. Hence, one can aim for strict equality or follow Rawls, who developed the difference principle: he suggested diverging from the strict equality principle as long as the inequality serves those in the society which are most disadvantaged and equal opportunities for all are preserved. This is provided that “1. Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their

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fair value.” (Rawls 1993: 5,6 in Lamont, Favor 2017: 6). The foundation of this doctrine is the belief in the equal value of all people and that the two main features of distributive justice should be that “1. They concern rights without which people cannot sustain themselves [and] 2. Concern core values on which the identity of a society is structured and organized” (Guo et al. 2019: 513).

These requirements can be found as being fulfilled by HR. HR have several advantages; as rights they are non-substitutable and express equal moral dignity (Caney 2012: 274). They are not bestowed or revoked as someone’s pleasure, but stringent adherence to them is considered a core value in most societies. HR are the most widely known standard and the smallest common denominator – an important feature since the two main conceptualizations of global justice are concerned with the controversy between the maximal and minimal account of distributive justice. The maximal theory is the “account of the perfect ideal” whereas the minimal theory “seeks to identify what is absolutely essential” a “moral redline that simply may not be crossed” (Caney 2012: 278). Accordingly, in this context the minimal ambition of distributive justice should be the provision of HR. I have explicitly chosen a rights-based conception of the theory (Guo et al. 2019: 512) and HR since they, other than e.g. the capability approach, have been officially endorsed by the UN member states. This represents their wide acceptance and more importantly imposes obligations on the states to observe and provide HR, even outside their own jurisdiction (Guo et al. 2019: 514).

To summarize, distributive justice here sets the standards of ‘who gets what’ and since here the securement of basic HR is the minimum threshold, HR for Tuvaluans have to be guaranteed. The only tolerable inequality can be one which benefits those, which are the least well off, thus HR have to be what the Tuvaluans ‘get’ as a matter of justice.

5.2.2. Corrective Justice

Achieving basic HR for Tuvaluans would be an accomplishment, but CJ also includes the aim that “each person can plan her life secure in the knowledge that she will be protected against certain kinds of external setbacks.” (Miller 2017: 6). In order to achieve this, the acts of agents which produced injustices

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have to be scrutinized and questions of liability raised. The value of corrective justice lies within “the principle that each person must take responsibility for his own conduct and, if he fails to respect the legitimate interest of others by causing injury,” (Miller 2017: 6) liability can be induced. Corrective Justice addresses the unfair loss “of a protected interest” (Adler 2007: 1859) and the action which caused the loss. It “imposes a standard on the agent who has acted wrongfully and thereby caused loss, to repair the loss” (Zipursky in Adler 2007: 1859). Liability requires a “wrongful” or “faulty” act (Adler 2007: 1860) and a causal relation between the cause and the harm. The aim of corrective justice is to restore the original position of the victim, or if stricter, it can require the wrongdoer not to have benefitted from the harmful act at all. The latter will be impractical here, since to define the direct and indirect benefits of all previous emissions and ‘take them back’ is an impossible task.

Corrective justice is central to Tuvalu since its own contribution to CC is insignificant and, it already has, but also will further suffer most severely from it. Matters of liability and compensation are therefore only natural to be raised – corrective justice entitles Tuvaluans to more than just HR, but to compensation based on liability (Adelman 2016: 38). Applying corrective justice means that states will have to compensate the victims which suffered because of GHG they emitted (Adler 2007: 1859). The standard (of the faulty act) and how much or from whom the compensation should be paid will be parameters to define in the later stages of the analysis.

5.2.3. Procedural Justice

Procedural Justice concerns the question of “how various benefits and burdens are allocated” the value of justice lies in the procedure itself (Miller 2017: 6,7) – as opposed to distributive justice where merely the goods are relevant. This is a significant component of CJ since Tuvalu and other small states which are threatened disproportionally strong by CC, are often also those which have the least to say on the international level about their situation. If one is to ‘do them’ justice, it cannot be without also considering the people and their opinion since the “people care about being treated fairly” (Miller 2017: 7). This also implies that the with the consent of a party, an act, which otherwise would have been considered unjust, can be just. This is a consideration which

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most likely will be relevant in the allocation of the burden of compensation, so that if a state agrees to a burden beyond its responsibility this is not unjust. Another aspect concerning the practical implementation is that the fight against CC has to be done collectively and justly – including all parties involved. If Tuvalu is not included in neither the fight against CC nor in the measures to remedy LD, their “agency” as well as their possibility to manage to their own lives is taken from them and may hinder the implementation of adaptation and mitigation measures (Betzold 2015: 483).

5.3. Operationalization

The three above-mentioned aspects of justice have certain prerequisites and conditions which underlie their fulfillment, and which can be phrased as parameters to more practically apply them to the analysis.

Protected Rights: The content of the rights claims or goods which Tuvalu has and whether they were indeed violated or not has to be defined. The protected rights will be the foundation for the decision on the type and amount of compensation.

Compensators: The parties which suffered from the violations and should receive compensation have to be identified as well as the actors who should be required to pay the compensation or reinstate the injured parties.

Causality, Responsibility, Liability and Blame: The causality between the harm inflicted and CC as well as between the actors and the cause of CC will have to be established. The problem of attribution will be an important issue since in order to allocate the responsibility and liability for injuries, the cause of the injury has to be clearly defined. CC and the emissions which caused it, have to be inextricably linked to actors and the question of the actionable wrong has to be solved.

Procedure: The last section in the analysis will be concerned with the question of how the claims can be fairly and justly assigned. When considering how compensation can be assigned, the requirements of procedural justice have to considered for the concept chosen to assign them.

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6. Analysis

In the preceding sections I have established the definition of LD, the harm suffered on Tuvalu, how it can be attributed to GHG emissions and conceptualized CJ. I will now apply CJ to these findings to establish which protected rights were violated on Tuvalu, which claims for compensation arise and how they can be attained. Another important aspect here, based on the theory, is the justification of the claims thus to address the issue whether and why it is justified to raise claims for compensation against emitters.

6.1. Protected Rights violated through LD

The standards of distributive, corrective and procedural justice as laid out in the theory section will be applied to the harm suffered by Tuvalu and Tuvaluans through CC.

Distributive Justice sets the standard of achieving and not violating HR and that the only tolerable inequality is one, which benefits the least well off. The slow-onset and extreme weather events of CC have harmed Tuvaluans’ most basic HR, such as the right to life, liberty and security, respect for private and family life, home and property. All through the occurrence of a cyclone which destroyed homes and displaced families, or droughts and heatwaves which destroy crops, cause water shortages and lead to increased death rates. The inequalities of these violations and the harm caused is detrimental to the least well off; they are the ones who cannot defend themselves or flee from it. It cannot be denied that HR violations have and are taking place on Tuvalu, thus distributive justice has clearly been violated.

Corrective justice imposes a liability that the status of the victim shall be restored to what it was before the violation occurred. Thus, each of the violations which Tuvalu is suffering right now, and which occur/ed on a daily basis on the island, be it land loss from SLR, droughts or economic hardship related to disappearing fish stocks, dying reefs because of ocean acidification or else, has to be restored to their initial conditions. With the aspect of liability and of the ‘faulty’ act one can determine who bears the responsibility for it –

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this will be discussed in a later section. The fact which remains, is that beyond the minimum standards of HR, Tuvaluans have a right to what they already had under corrective justice and should be protected against external setbacks (Miller 2017: 6).

Procedural justice concerns the fair allocation of burdens and benefits, especially how they were allocated. The burdens of CC are distributed extremely uneven across the world, especially the impacts on Tuvalu exceed the ones in other states by far, while Tuvaluans themselves are also least responsible for them. The ways the burdens were allocated, irrespective of fairness or justice cannot be termed as mere ‘bad luck’; Tuvalu has not agreed to be the victim of CC, but since CC is not accidental and can be traced back to a source, this becomes a matter of justice. Tuvalu was included in the talks and agreements about CC via the AOSIS, however no change has been achieved and the impacts of CC are extremely disproportionate and have been allocated in an unfair manner.

6.2. Awarding Compensation

The abovementioned violations of justice call for remedies and compensation, however many challenges here exist especially since not all harm can be remedied or restored (irreversible loss), not all harm is monetary and not all claims can be fulfilled. Two hurdles for compensation are what in terms of material, money or immaterial goods, can be awarded and to which extent. Should Tuvaluans be restituted as if no damage had ever occurred (including the forgone development) thus “made whole again” (Shue 1993: 53), should the polluting states be required not to have benefitted from the emissions or should past damages be used to justify investments which go beyond the ‘basic’ restitution to ensure future security. I will base the consideration of these questions on aspects of justice, but also consider feasibility in order to keep the aim of this thesis in mind to provide a just and practical solution.

In addition to the requirements of corrective and distributive justice, the claims of Tuvalu have to be considered to satisfy the demands of procedural justice, also, it might lead to clarity for an appropriate redress for Tuvaluans in cases were non-monetary values are relevant and their importance is difficult to assess.

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Claims of Tuvalu

Tuvaluans have been very vocal about two facts; they do not want to leave their islands and they want to retain their citizenship and statehood. Displacement to another state is seen a negative development rendering them second-class citizens and depriving them of their land and cultural identity. Tuvalu’s Prime Minister Sopoaga demands the fulfillment of HR for his people, the development of frameworks for future relocations and challenges as well as that Tuvaluans are awarded compensation for HR infringements and CC induced LD (Sopoaga 2015: 2-4). It is crucial to note that the claims of Tuvaluans and Sopoaga differ – the latter, probably attributable to him being a politician, already also considers the option of relocation and preparation for this scenario.

The duties arising from these claims are hard to define. Most generally, as much and as fast mitigation as possible to prevent even worse impacts, but this will not save Tuvalu anymore. The function of HR as minimum standard entails their inviolable nature; HR infringements are to be averted under all circumstances. However, HR infringements happened and will happen on Tuvalu since their realization is physically restricted – no matter which sea barriers are built, the point may come that people will have to leave Tuvalu in order to remain safe. This restraint does not consider the investments and possibly sacrifices which were made up to this point. The former consideration raises an extremely critical point of making a cost-benefit analysis for the protection of HR. If HR should never be violated, does this mean that they should be protected under any costs or are there limits to the protection in the sense, that safeguarding them in a ‘cheaper’ way could be justified? From an ethical perspective the HR of Tuvaluans should be kept no matter the costs and with the least infringements upon their original way of life, since they bear no responsibility for CC induced LD. Especially since non-economic values like cultural ties to the land can never be adequately incorporated or compensated.

However, not only the physical constraints but also practical concerns play a role. I argue that the duty in this case would entail to enable the islanders to remain on Tuvalu as long as the physical constraints do not thwart this

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completely. Sufficient resources should be awarded for this, but the Tuvaluan people and government should decide what these should be used for and when the islands will have to be evacuated. Thus, the decision whether the compensation will be invested to fortify Tuvalu instead of preparing relocation in other places should be up to them.

Further Suggestions

In addition to Tuvalu’s claims, other solutions have been proposed and since the aspect of non-economic harm has not or only little been addressed, which may be attributable to the low awareness on the island itself (Betzold 2015: 484), it will be included here. The distinction between economic and non-economic harm also calls for distinct compensation measures. Compensation in general aims to restitute and to better prepare the community for future impacts of CC, to unite proactive and protective action (Tschakert et al. 2017: 7). The multi-window mechanism of AOSIS shows this – it was proposed to tackle LD with its three components of insurance, rehabilitation and risk management (AOSIS n.d.: 4). Rehabilitation includes both moral and physical repair and should provide the opportunities for a ‘comeback’ (Thompson, Otto 2015: 449).

There are only few suggestions to how losses, especially non-economic ones, can be addressed, considering that it might be impossible to ‘do’ justice due to the irreversibility of loss. However, the chance that it could be relieved remains, thus moral repair, an attempt for relief and reconciliation, should be aimed for (Thompson, Otto 2015: 449). Social transition (Wallimann-Helmer 2015: 478) suggest overcoming the loss step by step and substitute it with other values, and another suggestion for moral repair is a political trusteeship, where other states take responsibility for Tuvaluans (Kostakos, Zhang, Veening 2014: 8). This would serve two functions; states would declare responsibility for the Tuvaluan people and provide them with some security they can rely upon and thereby the states would also recognize that the peoples’ exposure to hazards is not ‘bad luck’ or poor adaptation. A further possibility to alleviate losses would be a guarantee of non-repetition (CSO 2019: 6), since an emotional loss is easier to cope with, when being assured that it will not reoccur. This is difficult to guarantee for natural disasters, but it would be possible by assuring support and compensation for future losses,

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thus alleviating (emotional) stress. To subsume here; the compensation for irreversible harm rather aims to support the moral, psychological and self-helping aspects instead of providing solely monetary compensation.

Compensation for economic and reversible harm is easier to determine since the material losses or damage can mostly be calculated, either in goods or as monetary values. The distribution of either financial resources, goods (crops, seeds tools) or physical aid (workforce) can be helpful for recovery. To provide financial restitution to Tuvalu propositions included an Environmental Damage Fund (Doelle, Seck 2020: 674), solidarity mechanisms (Adelman 2016: 48) or market mechanisms (Shue 1993: 57, 58). Disagreements here are often related to how the mechanisms should be constructed to serve their initial purpose of compensating LD. This discussion relates to the difficulty of separating aids for economic development from financial restitution for LD (Künzel et al. 2017: 16) e.g.; building a new port which is less vulnerable to SLR can be placed in both categories. This debate is inevitable, especially since allocatable resources are limited and the conflict already exists between different areas of climate finance (Künzel et al. 2017: 16). Countering that argument would be the approach that achieving HR and development is important irrelevant of whether it should have been only for the compensation of LD. Transferring technical knowledge could also be compensation with the advantage of being a minimal expenditure and creating no additional emissions, since these resources already exists.

Measures to address the loss of land may be controversial especially the replacement of territory and reinstitution of statehood. For replacement of land, the impossibility of conjuring up ‘new’ land has to be considered, nearly all land has already been claimed by a state or else. Thus, to give ‘new’ land to Tuvaluans will always include taking land from another party – whether this is justifiable I will discuss in the subsequent section, however I doubt that it will be possible politically. Also, it will remain a replacement and it is questionable whether it can indeed fulfill the same (cultural) functions and assume the same values as before. Another suggestion was the proposition that Tuvalu could retain sovereignty over the inundated land, which would be considered as land within its maritime borders (Kostakos, Zhang, Veening 2014: 8). This would allow Tuvalu to retain its statehood, Tuvaluans their citizenship and theoretically, to use the land as fishing grounds (thus have an

Climate Justice for Tuvalu : Awarding Compensation for Loss and Damages caused by Anthropogenic Climate Change