{"id":27320,"date":"2025-10-03T07:00:30","date_gmt":"2025-10-03T12:00:30","guid":{"rendered":"https:\/\/blogs.law.columbia.edu\/climatechange\/?p=27320"},"modified":"2025-10-02T09:37:34","modified_gmt":"2025-10-02T14:37:34","slug":"repairing-the-irreparable-addressing-non-economic-loss-and-damage-in-climate-reparations","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2025\/10\/03\/repairing-the-irreparable-addressing-non-economic-loss-and-damage-in-climate-reparations\/","title":{"rendered":"Repairing the irreparable: addressing non-economic loss and damage in climate reparations\u00a0"},"content":{"rendered":"
<\/div>

As climate change effects are revealing themselves at a rampant pace, there is no denying that <\/span>mitigation commitments and adaptation policies are insufficient<\/span><\/a>. Consequently, loss and damage is <\/span>gaining traction in the climate governance agenda<\/span><\/a>, but <\/span>this complex notion is still in the process of being outlined<\/span>.<\/span> One particularly challenging issue is how to deal with non-economic loss and damage (NELD) that is not easily quantifiable in financial terms\u00a0or exchanged on markets, such as \u00a0damage to cultural heritage, ecological impairment, or loss of human life (among many examples). In spite of being a significant climate issue and raising questions of responsibility and justice, NELD remains primarily addressed through <\/span>expert discussions<\/span><\/a> rather than negotiation between\u00a0 state envoys.\u00a0<\/span><\/p>\n

Thankfully, <\/span>states\u2019 obligations concerning climate change are not limited to the dedicated treaties<\/span><\/a>, and climate justice can be sought outside of the climate regime. Jurisprudence on state responsibility confirms that there exist remedies able to tackle the abstract nature of NELD. Besides, climate consequences are too complex to be attached to specific categories, and different means of reparation, whether they be structural or monetary, can cover the same harm which appears harshly assessable at first.\u00a0<\/span><\/p>\n

This blog post explores how NELD could be addressed through a maximalist and holistic approach to climate reparations. It will briefly review the perspective of pecuniary and non-pecuniary reparations that could be awarded by jurisdictional bodies, before underlining the relevance of negotiations and the necessity of more general normative developments to fully respond to NELD.<\/span>\u00a0<\/span><\/p>\n

Using courts as <\/b>fora<\/i><\/b> to seek compensation for NELD<\/b><\/h2>\n

Even though classifying heritage impairment, environmental harm, displacement from ancestral territory or loss of human lives as NELD might appear, at first glance, the most natural conceptual position, monetary forms of reparations should not be ruled out categorically, for two reasons. Firstly, restitution of such losses, such as ancestral territory or cultural heritage, will reasonably be impossible. Secondly, there exist several ways to quantify NELD and to provide symbolic compensation.\u00a0<\/span><\/p>\n

Decades of case law confirm that contemporary international law recognizes moral harm. More than one century ago, arbitral commissions in the <\/span>Topaze<\/span><\/i><\/a>,<\/span><\/i> Lusitania<\/span><\/i><\/a>, <\/span><\/i>Faulkner<\/span><\/i><\/a> and <\/span>McNeil<\/span><\/i><\/a> cases \u2014 ruled in favor of compensation for various types of moral harm, such as several human deaths and arbitrary detention. This was reaffirmed later in the human rights field. The Inter-American Court of Human Rights played a central role in advancing reparation for moral harm, starting with its reparation order in the <\/span>Vel\u00e1squez-Rodr\u00edguez v. Honduras<\/span><\/i><\/a> case, concerning a student which had been arbitrarily detained in inhumane conditions by the armed forces of Honduras and sought reparation for the harm suffered. Compensation for non-monetary environmental harm and pure ecological damage has been recognized \u2014 to only cite a few \u2014 by the <\/span>United Nations Claims Commission<\/span><\/a> in the aftermath of the Iraqi invasion of Kuwait, the International Law Commission in its <\/span>Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities<\/span><\/a>, and, more recently, the International Court of Justice (ICJ) in its <\/span>Certain Activities Carried Out by Nicaragua in the Border Area<\/span><\/i><\/a> case, concerning transboundary environmental harm caused on Costa Rica\u2019s territory by Nicaraguan authorities\u2019 activities<\/span>.<\/span><\/i><\/p>\n

International courts tend to favor flexible and less strict ways to value such harm, and use various and interchangeable notions to justify their assessment. For instance, on the basis of equity, the African Court on Human and Peoples’ Rights, considering complaints of indigenous peoples denouncing unlawful evictions from their territory, awarded one hundred million Kenyan shillings in the <\/span>Ogiek<\/span><\/i><\/a> case. The ICJ, in its <\/span>Armed Activities on the Territory of the Congo<\/span><\/i><\/a> reparation<\/span> order<\/span> dealing with<\/span> the harm caused by Ugandan armed forces on people, property and resources,<\/span> ruled in favor of a global sum for all environmental damage incurred. In the aforementioned <\/span>Certain Activities <\/span><\/i>case, it was also held that difficulties in assessing this type of harm should not result in it going uncompensated. The ICJ also extended monetary reparation to the repayment of sums necessary to redress harm through active measures.\u00a0The common point standing out from these different cases is that judges explicitly recognize the difficulty of putting a price on moral harm, the challenge for the victim State of collecting evidence to support its claim, and the necessity to offer reparation in spite of these hurdles. International courts tend to consider equity as a basis for their calculation, and transparently recognize that they consider harm globally, grouping it and offering a general sum as a remedy for the entire moral harm suffered.<\/span><\/p>\n

Besides, some bold changes in practice, notably advanced by <\/span>judges Paulo Pinto de Albuquerque and Neboj\u0161a Vu\u010dini\u010d<\/span><\/a> before the European Court of Human Rights, might suggest that punitive damages, that is to say an obligation to pay calculated to reflect a sanction rather than a monetary remedy, could become more widespread in the future. This could represent an adequate prospect for providing, in the climate crisis context, reparations for harm that is not naturally associated with a pecuniary value.<\/span><\/p>\n

These developments lead us to question if NELD are <\/span>purely <\/span><\/i>non-economic, and if their monetary assessment is <\/span>truly<\/span><\/i> impossible. These precedents suggest that the perspective of pursuing compensation through litigation should not be ruled out from the outset. Victims of NELD can definitely consider litigation as a path toward compensation. Nevertheless, fair compensation for NELD is never ensured and the task brings its share of difficulties. For instance, assessing moral harm is a particularly subjective task with uncertain outcomes, depending heavily on a court\u2019s choice regarding calculation processes. The ICJ\u2019s approach in the <\/span>Certain Activities<\/span><\/i> reparation order \u2014 when it favored a particular approach without justifying its preference and clarifying its method \u2014 <\/span>has been considered as a good illustration of this conundrum<\/span><\/a>. Thus, compensation should not be the sole means of repairing NELD.\u00a0<\/span><\/p>\n

Litigating for non-pecuniary redress of NELD, a strategic approach to climate harm\u00a0<\/b><\/h2>\n

Equitable assessment of harm and provision of monetary reparations are only one part of the toolbox in repairing NELD, which also calls for procedural, symbolic, and systemic solutions. Indeed, due to the specific nature of climate harm, broad and global in its extent and inextricable from the issue of causality, collective reparations may be more appropriate.\u00a0\u00a0<\/span><\/p>\n

International case law relies heavily on declaratory judgments, which imply further redress measures. As <\/span>Dinah Shelton<\/span><\/a> has observed: \u201c\u00a0It is the beginning of remedies, not the end\u201d.<\/span><\/p>\n

Even if satisfaction measures are secondary forms of reparation, they can play a significant role in addressing NELD through their general and collective scope. Examples can be found in the Inter-American Court\u2019s rulings. In the <\/span>La Oroya<\/span><\/i><\/a> case, Peru was ordered to organize a public gathering and acknowledge its wrong. The African Court, in the aforementioned <\/span>Ogiek<\/span><\/i> case, asked for public apologies and monuments. We can imagine similar symbolic initiatives for climate NELD.<\/span><\/p>\n

Thus, guarantees of cessation and non-repetition appear to be the most adequate perspective<\/span>\u00a0<\/span>for repairing NELD, as they would bring, once complied with, a necessary structural change. Courts have required this in past cases. For example, in the <\/span>La Oroya <\/span><\/i>ruling, the Inter-American Court requested restoration plans and improvements to environmental standards. The <\/span>Ogiek<\/span><\/i> case led to a call for consultation of affected communities in decision-making processes. This particular measure was also favored by the Human Rights Committee in the <\/span>Daniel Billy and others v. Australia<\/span><\/i><\/a> case on climate change consequences for an Indigenous community menaced by sea-level rise, and in a <\/span>recent decision<\/span><\/a> from the Committee on the Rights of the Child concerning harmful activities in Sami territory in Finland. Such potential orders<\/span> would be all the more significant as they could arise, according to the <\/span>Draft Articles on Responsibility of States for Internationally Wrongful Acts<\/span><\/a>, in case of a successful <\/span>actio popularis<\/span><\/i> case brought forward by non-affected states. Indeed, any State invoking international responsibility can demand cessation and guarantees of non-repetition as reparation measures.\u00a0\u00a0<\/span><\/p>\n

Turning to cooperation as a pragmatic approach to comprehensively address NELD<\/b><\/h2>\n

Climate litigation brings its share of challenges, such as jurisdiction, standing, causation, procedural costs, and enforcement of rulings. Thus, reparation of NELD cannot be dealt with exclusively within the confines of the courts. It is essential to also consider international negotiation, with litigation providing the impetus to cooperate.<\/span><\/p>\n

States have historically settled their disputes using <\/span>ex gratia<\/span><\/i> discretionary payments and negotiation. The <\/span>lump sums offered by the United States to the Marshall Islands<\/span><\/a> to address the consequences of its nuclear tests in the Pacific are a good illustration of this practice. The ICJ itself has invited states to settle reparations through diplomatic discussion \u2014 as was the case, for example, in the <\/span>Armed Activities on the Territory of the Congo judgment<\/span><\/a>.<\/span><\/p>\n

International financial assistance<\/span>\u00a0<\/span>could also be a placeholder for pecuniary reparations, and could indirectly, by being framed as supportive rather than remedial payments, address climate harm. This appears to be the most favored pathway as for now, as suggested by the climate action projects financed by the Global Environment Facility, the World Bank, the Green Climate Fund, the Global Shield against Climate Risks, and the <\/span>ongoing operationalization of the Loss and Damage Fund<\/span><\/a>. The latter could become an appropriate <\/span>forum<\/span><\/i> to consider NELD, since it is the only financial mechanism with a clear mandate in the matter. One key condition would be to discard any mention of liability susceptible to impair cooperation and foster reluctance from emitters, and to <\/span>focus on voluntary payments<\/span><\/a> which would indirectly serve as compensation \u2014 without being defined as such and while circumventing its hurdles. Moreover, in the same fashion, without referring to reparation, grants for mitigation and adaptation projects could ultimately contribute to addressing NELD, and advance climate resilience and equity.<\/span><\/p>\n

Additionally, transitional justice processes could be incorporated into the climate change governance framework as a means to address loss and damage. Building on recent work which fleshed out the links between environmental concerns and transitional justice (see for instance <\/span>here<\/span><\/a> and <\/span>here<\/span><\/a>), we may imagine truth and reconciliation conferences aimed at ascertaining facts, amnesty or limitation of liability, and structural reforms, as potential initiatives to repair climate harm in a fair, long-term and victim-centered manner.<\/span><\/p>\n

These potential actions aim at future-oriented and participative reparations. They are not unrealistic, as international discussions confirm that emitters, today, firmly favor dialogue over responsibility.\u00a0<\/span><\/p>\n

Global justice as the end goal: Addressing NELD by moving toward a fairer international order\u00a0<\/b><\/h2>\n

Despite attempts to negotiate and gather financial resources, reparation of NELD is stalling and suffers from a lack of political will. Only broader reforms <\/span>de<\/span><\/i> lege ferenda<\/span><\/i>, at the international level, will cross this gap. We need to consider future-oriented justice and responsibility, prospects that can be attained, as court rulings suggest, by focusing on preventive action and engaging with stakeholders.\u00a0<\/span><\/p>\n

Even if the climate regime appears to have ruled out responsibility, this perspective can still emerge <\/span>de lege ferenda.<\/span><\/i> Several prospects can be considered as ways to reinforce accountability for NELD. <\/span>Some authors<\/span><\/a> call for considering strict liability, a perspective that they deem to be, as far as environmental matters are concerned, a general principle of international law. The concept of <\/span>shared responsibility<\/span><\/a> has also been gaining in prominence, and could be a potential tool to ensure a collective response to climate harms.<\/span><\/p>\n

However, given their specific nature and the difficulty to repair them in a tangible fashion, NELD might be more adequately addressed through a preventive approach. <\/span>Ecological integrity<\/span><\/a>, <\/span>planetary boundaries<\/span><\/a>, <\/span>stewardship<\/span><\/a> or <\/span>earth systems law<\/span><\/a>, among countless other hypothetical prospects, could be key components to a more adequate environmental law, able to keep nature safe in the age of the Anthropocene.<\/span><\/p>\n

We also need structural revisions in the international order. <\/span>Instilling more solidarity<\/span><\/a> among all the living, human or non-human, present or future, in legal frameworks, <\/span>advancing debt-relief<\/span>, affirming the planetary common interest, and <\/span>ensuring public participation<\/span><\/a> are examples of potential reforms that could be considered to move toward a global community and better address climate reparations.<\/span><\/p>\n

Conclusion\u00a0\u00a0<\/b><\/h2>\n

Reparation of NELD should not be deemed as a lost cause. International law offers several existing and prospective pathways to seek redress. The key to climate reparations lies in taking advantage of these legal levers. Litigation and cooperation go hand in hand, and it is through their optimal use that we will realize climate justice for all.\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

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