Resilience and Nonideal Justice in - IA de Investigación especializada en el MIT

Resilience and Nonideal Justice in
Climate Loss and Damage Governance

(cid:129)
Ivo Wallimann-Helmer*

Abstracto

From a nonideal justice perspective, this article investigates liability and compensation in
their wider theoretical context to better understand the governance of climate loss and
damage under the United Nations Framework Convention on Climate Change
(UNFCCC). The usual rationale for considering compensation takes a backward-looking
understanding of responsibility. It links those causing harm directly to its remedy. Este
article shows that, under current political circumstances, it is more reasonable to under-
stand responsibility as a forward-looking concept and thus to differentiate responsibilities
on grounds of capacity and solidarity. The article argues that loss and damage entitlements
in UNFCCC governance should be understood as entitlements to a threshold of capabilities
for resilience. While compensation merely means redressing the situation ex ante a threat,
entitlements to capabilities for resilience can entail more demanding responsibilities of
apoyo. This means that Article 8 of the Paris Agreement has much more demanding
implications than it might at ﬁrst appear.

Palabras clave: climate loss and damage, climate justice, nonideal theory, compensación,
liability, resilience, compensatory justice

The decisions in Article 8 of the Paris Agreement (1/CP.21, §52.) entail that cli-
mate loss and damage (l&D) is highly unlikely to be addressed through liability
for compensation, even though these framings are the most intuitive (Lees
2017). Although developing countries and civil society organizations have
requested since the early debates about L&D under the United Framework Con-
vention on Climate Change1 (UNFCCC) that it be framed in terms of liability
and compensation, Decision 1/CP.21, §52. holds “that Article 8 of the Agree-
ment does not involve or provide a basis for any liability or compensation”
(Vanhala and Hestbaek 2016). This article investigates the ethical implications
of Article 8 despite this decision. It shows why the justiﬁcation of responsibil-
ities for remedy must not rely exclusively on liability for L&D as is most often

* Contact: ivo.wallimann-helmer@unifr.ch
1. https://unfccc.int/ﬁles/essential_background/convention/background/application/pdf

/convention_text_with_annexes_english_for_posting.pdf, last accessed May 30, 2023.

Global Environmental Politics 23:3, Agosto 2023, https://doi.org/10.1162/glep_a_00723
© 2023 Instituto de Tecnología de Massachusetts. Publicado bajo una atribución Creative Commons 4.0 Internacional
(CC POR 4.0) licencia.

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Ivo Wallimann-Helmer

(cid:129) 53

employed in climate litigation. I argue that victims of L&D should be seen as
entitled not only to compensation for L&D but to achieving levels of capabilities
sufﬁcient to become climate resilient.

The article proceeds as follows. Primero, I explain my approach from nonideal
theory and the current political and legal circumstances. This allows the role of
liability and compensation in relation to L&D to be clariﬁed. Segundo, yo discuto
that differentiating remedial responsibilities by relying on liability and
backward-looking responsibility for climate change is only one way of assigning
responsibilities for remedial action in cases of L&D. Forward-looking reasons of
capacity and solidarity also allow these responsibilities to be differentiated.
Tercero, discussing two key challenges to arguing for such forward-looking justi-
ﬁcations for remedial responsibilities clariﬁes that entitlements in L&D gover-
nance under the UNFCCC are ideally deﬁned as entitlements to capabilities
for appropriately addressing climate threats. Cuatro, this article ends by suggest-
ing that entitlements in case of L&D materializing or due to risks of L&D should
be understood as entitlements to climate resilience to recover swiftly after a cli-
mate threat.

Even though this suggestion might seem more demanding than the start-
ing point of this investigation from nonideal theory, it demands no more than
the parties agreed in the Paris Agreement. They agreed that in cases of L&D, el
areas of cooperation and facilitation may include enhancing “resilience of com-
munities, livelihoods and ecosystems” (Article 8). De este modo, the Paris Agreement
could still be criticized as dangerous incrementalism that masks the collective
failure of international climate governance rather than promoting effective
climate action (Allan 2019). The argument in this article shows, sin embargo, eso
it involves much more than incrementalism, at least with respect to L&D
governance under the UNFCCC.

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The UNFCCC, Climate Litigation, and Nonideal Theory
Although in Article 8 of the Paris Agreement, the parties recognize “the impor-
tance of averting, minimizing and addressing loss and damage,” paragraph 52
of Decision 1/CP.21 states that Article 8 “does not involve or provide a basis for
any liability or compensation.” From a conceptual point of view, this decision is
unfavorable because usually any harm caused by an agent affecting other parties
is believed to demand remedy by the insulting party: those causing harm are
seen as liable for providing compensation for that harm (Weinrib 2002). Com-
pensatory justice holds that those harmed should be made whole again by those
that have harmed (Page and Heyward 2016). In climate litigation, this kind of
reasoning is very common to oblige emitters of greenhouse gases to pay remedy
or change their polluting behavior. Even though important in climate litigation,
the current decisions in the Paris Agreement block these kinds of considerations.
In what follows, I ﬁrst explain the methodological starting point of this article
from nonideal theory. I then illustrate the usual understanding of liability for

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54 (cid:129) Resilience and Nonideal Justice

compensación. The discussion in this section serves as a foil with which subse-
quent sections can analyze how to deal with the nonideal situation currently
existing in UNFCCC governance.

This article is an exercise in nonideal theory because it takes the unfavor-
able political decisions under the UNFCCC as its starting point. The distinction
between ideal and nonideal theory has been promulgated by John Rawls, OMS
distinguishes two kinds of nonideal challenges to realizing ideal justice in a
globalized world (Rawls 1999, part 3). The ﬁrst concerns challenges in realizing
justice under partial compliance. The second involves obstacles to realizing jus-
tice due to unfavorable conditions in societies. This investigation starts from
unfavorable political decisions by considering paragraph 52 of Decision
1/CP.21 to the Paris Agreement. This decision is unfavorable to realizing ideal
justice because, in ideal theory, just compensation entails that those causing
harm are also those responsible for remedying that harm. Párrafo 52 of Deci-
sion 1/CP.21 can also be understood as expressing a lack of compliance by
developed country parties to the Paris Agreement to accept their responsibility
for causing L&D. Excluding L&D as a basis for liability and compensation makes
it difﬁcult for victims to claim their rights under the UNFCCC through mecha-
nisms like the Warsaw International Mechanism (WIM), as is currently the case.
These unfavorable circumstances apply only under the UNFCCC and not in
other legal contexts at domestic and international levels outside the United
Nations (UN) estructura. In these legal contexts, liability for climate change is
not excluded and therefore plays an important role in climate litigation. Desde el
new millennium, the number of lawsuits in relation to climate change relying on
liability has grown immensely, especially in the United States (Setzer and Higham
2021; Setzer and Vanhala 2019). While until 2005, there were no more than 20
climate litigation cases globally, their number had grown to nearly 180 por 2020.
Only a few of these cases have been accepted as valid before courts, but successful
cases often rely on liability for climate change and present their claims as com-
pensation for L&D (Beauregard et al. 2021; Huggel et al. 2016). Even when law-
suits concern inaction in reducing emissions, claimants often rely on current or
expected L&D or human rights violations as damages due to climate change, como
happened after Hurricane Katrina in the United States or in the case of the climate
seniors taking the Swiss government to the European Court of Human Rights for
not doing enough to protect their health (Maljean-Dubois 2019; Toussaint 2020).
As in UNFCCC negotiations, to deﬁne what is a case of L&D litigation is
highly contentious and underlies issues of deﬁnition and political strategies
(Vanhala and Hestbaek 2016). Por ejemplo, it is often argued that only cases
dealing with L&D after a climate threat has happened are actually cases of L&D
litigation. Sin embargo, actual litigation cases often pursue the prevention of the
repetition of past harms and corresponding action as compensation. Estos
claimants do not rely on L&D that has already materialized but pursue
forward-looking claims. Además, evidence that attributes singular extreme
weather events and slow-onset events to anthropogenic climate change is

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Ivo Wallimann-Helmer

(cid:129) 55

growing, but human emissions are seldom the only cause of L&D and their
magnitude. Higher vulnerability and exposure to climate threats also depend
on other confounding factors: social and economic conditions. Whether such
confounding factors should become relevant in climate litigation is an open
pregunta. To overcome these deﬁnitional issues, Toussaint (2020) suggests
focusing on the objectives of claimants to identify explicit L&D lawsuits. l&D
litigation cases can be identiﬁed as such only if claimants explicitly seek com-
pensation for L&D by invoking liability for climate change. As we will see, a
similar strategy is helpful to deﬁne L&D entitlements in UNFCCC governance.
Liability, or strict liability, in tort law ascribes responsibility for compen-
sation on the basis that the plaintiff has intentionally, negligently, or recklessly
caused harm (Couto 2018; jardinero 2015). Establishing such a connection
serves to assign corrective duties to make good the harm inﬂicted. The harming
party owes redress to its victim to at least restore the situation of the victim
before the harm. This understanding of liability corresponds to the classical
understanding of compensatory justice (oh. O’Neill 1987; j. O’Neill 2017).
According to compensatory justice, causing harm establishes a special relation-
ship between the agent causing the harm and its victim. This relationship jus-
tiﬁes special responsibilities of remedy because the party causing harm inﬂicted
an injustice on the harmed party. Making good this injustice means making the
victim “whole again” (Goodin 1989; Page and Heyward 2016). The harming
party must restore the situation ex ante the harm. What is relevant to deﬁning
compensatory entitlements is what the harming party has done and the situa-
tion of the victim before the threat. What needs to be restored is this situation. Si
this is achieved, the harming party has done its due.

Taking compensatory justice as the ideal in cases of L&D means, in ideal
theory, that climate lawsuits and mechanisms like the WIM under the UNFCCC
must ensure that emitting parties compensate victims by restoring the situation
ex ante negative climate impacts. In cases of climate litigation, this means that
plaintiffs are entitled to demand remedy from emitting parties for L&D already
materialized or expected. In the ideal, this means that domestic and interna-
tional legal institutions ensure that plaintiffs for L&D are accepted before the
various courts (Hinteregger 2017). In cases of the WIM, ideal theory demands
that those facing potential L&D receive ﬁnancial and other nonﬁnancial support
to address incurred and expected negative climate impacts (Robinson and
Carlson 2021). In both climate litigation and under the UNFCCC, victims of
climate harm would be compensated by those who contribute more to climate
change in proportion to their contributions.

Sin embargo, even in the ideal, climate litigation is not a guarantee of appro-
priate compensation for all victims of L&D. In climate litigation, ideal theory
demands that all domestic and international legal institutions become ready
to accept climate claimants as legal parties before the court. This is especially
important if claims are cross-boundary and concern either communities resid-
ing in various countries or claimants in one country suing plaintiffs in other

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56 (cid:129) Resilience and Nonideal Justice

countries for L&D in their region. Inuit people would proﬁt from a change,
according to the ﬁrst revision of domestic institutions, because their claims
are not bound to only one country but concern both Canada and the United
Estados (Heyward 2014). Allowing claimants to sue plaintiffs in other countries
could help normalize cases like Lliuya v. RWE, in which a farmer from Huaraz in
Peru assisted by Germanwatch sued Germany’s largest electricity producer for
contributing to climate change and thereby increasing the risk of a glacier lake
outburst ﬂood from Lake Palcacocha (Huggel et al. 2020). Sin embargo, even if
successful, such lawsuits would be limited in their scope, only helping those
victims able to sue developed countries or their agents but not all victims of
l&D. All victims not able to do so would be left behind.

This is why, even if climate litigation becomes more successful, compen-
satory mechanisms under the UNFCCC would still be needed to provide
support for victims of L&D that cannot afford climate litigation. Because the
Paris Agreement blocks liability for compensation, it is currently not possible
to pursue this route under the UNFCCC. In what follows, I investigate how
to deal with these nonideal circumstances under the UNFCCC to understand
how to approach the ideal of compensatory justice in L&D governance without
invoking liability for compensation. This is another way of understanding the
relation between ideal and nonideal theory. There is an ideal to be achieved, en
our case, compensatory justice for L&D in climate governance, but to achieve it,
a theory of transitional justice becomes necessary (Sen 2011; Valentini 2012).
Such a theory deﬁnes how best to achieve the ideal end state. en l&D gover-
nance under the current situation in the UNFCCC, such a theory means deﬁning
how to ensure that those facing L&D receive their due as well as possible. En
otras palabras, such a theory means deﬁning who must provide support for those
facing climate threats because the Paris Agreement does not allow these respon-
sibilities to be differentiated by relying on liability and compensation.

Rationales for Assigning Remedial Responsibilities

The previous section explained how liability and compensation play a key role
in climate litigation outside of the UNFCC. Assigning compensatory duties
based on liability means invoking compensatory justice. Compensatory justice
typically relies on backward-looking responsibility. According to this traditional
understanding of responsibility, those who have caused harm by their action
should make good that harm. Sin embargo, under the UNFCCC, using backward-
looking considerations to differentiate responsibilities is currently blocked. En
this section, I argue that under current nonideal circumstances, forward-looking
reasons could serve to differentiate responsibilities in L&D governance under
the UNFCCC instead. These ways of assigning responsibilities for L&D all rely
on various reasons of capacity and solidarity but not on liability. Por eso, a
forward-looking understanding of responsibility can serve L&D governance
Bueno, despite the decisions in the Paris Agreement.

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(cid:129) 57

Responsibility traditionally includes at least two components (Bayertz
1995; Wallimann-Helmer 2019a): one is the agent assigned responsibility; el
other is a certain outcome for which the agent is ascribed responsibility. Estos
two components establish a relationship between an agent and a certain state of
affairs, for which some kind of causality is usually considered to be crucial.
Whether such a causal relation must be direct or can be established more indi-
rectly depends on the circumstances of ascribing responsibility (Molinero 2007).
Some argue that the causal chain must be strong; others believe that social rela-
tions and institutions establish relations between agents and outcomes signiﬁ-
cant enough to ascribe responsibility (Hattori 2021; Joven 2006). And still
others believe that beneﬁting from actions by others that contribute to an out-
come is enough to assign responsibility (Página 2012). These assignments of
responsibility are morally neutral and could be understood as descriptions of
relations between agents and outcomes. These descriptions become morally rel-
evant as soon as the agent is asked to justify why and for what reasons the out-
come occurred. If actions or their outcomes are evaluated as negative or have
negative side effects, such a relation becomes particularly morally signiﬁcant.
Whether an agent is blameworthy for such negative outcomes depends on
whether some moral principle or norm deﬁnes the action or the outcome as
morally wrong.

All these considerations can directly be transferred to L&D. Emitters, especialmente-
cially industrialized countries, contribute to climate change, and climate change
leads to L&D. Probabilistic event attribution aims at showing how the frequency
and intensity of extreme weather events like the El Niño phenomenon and
slow-onset events like sea level rise or the thawing of permafrost can be attrib-
uted to anthropogenic climate change (Huggel et al. 2016; James et al. 2019;
James et al. 2014). This research aims to attribute L&D to anthropogenic climate
change through cascading effects from changes detected in human and natural
systems to changes in the climate system. Most recent detection and attribution
research claims that climate litigation would be more successful if it relied on
the best scientiﬁc evidence available (Stuart-Smith et al. 2021). This evidence
would even allow single extreme weather events, such as Hurricane Katrina,
to be assigned to the individual contributions of states. These obvious ways
of establishing causal relations between emitters as responsibility bearers
y yo&D make it most plausible to assign remedial responsibilities for L&D
for reasons of liability, whether in climate litigation or under UNFCCC gov-
ernance rules.

Such kinds of attributions of responsibilities for L&D are backward-looking.
They ascribe responsibility for causal contribution to climate change or more
indirect contributions due to participation in social and institutional struc-
turas. These kinds of attributions of responsibility can be termed reasons for
outcome responsibility ( Molinero 2007; Wallimann-Helmer 2019b). Outcome
responsibility concerns responsibility for recent action already realized or for
action in the more distant past, hence invoking historical responsibility. Similar

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58 (cid:129) Resilience and Nonideal Justice

to liability, outcome responsibility is most often seen as a core reason for
becoming responsible for remedy. Among such backward-looking assignments
of responsibilities, the polluter-pays and beneﬁciary-pays principles (PPP and
BPP, respectivamente) are the most prominent principles in climate ethics (Gardiner
et al. 2010). According to versions of the PPP, all agents are responsible for
remedy in proportion to their polluting activities or other contributions to
climate change. According to the BPP, they are responsible in proportion to
the beneﬁts they received and receive due to climate change or actions con-
tributing to climate change, irrespective of how much they themselves contrib-
uted directly.

Sin embargo, there are at least two challenges showing why assigning respon-
sibilities beyond backward-looking responsibility and liability should play a
role in L&D governance. Primero, extreme weather events due to climate change
already happen now and tend to threaten human rights. Some slow-onset
events, such as sea level rise, are already to be expected and will lead to existen-
tial losses, such as the disappearance of low island states, with detrimental
moral and legal implications (Armstrong and Corbett 2021). When L&D has
already materialized or will surely materialize, it is more important to help
victims in urgent need immediately than to assign responsibilities according
to various contributions to climate change ( Wallimann-Helmer et al. 2019).
Although current conditions under the UNFCCC allow remedial responsibilities
not to be assigned according to liability, victims of L&D in need of assistance
need support immediately. Segundo, purely backward-looking responsibility is
limited in scope ( Wallimann-Helmer 2015). It covers only anthropogenic
climate change but not natural climate variability, which also contributes to cli-
mate threats. Hence only part of an urgent situation would be covered by relying
solely on remedial responsibility assigned due to the contribution to climate
cambiar. En tal situación, one might wonder who should help those in need
of assistance for the threats they face due to natural climate variability. Semejante
ascriptions of remedial responsibilities demand other justiﬁcations beyond lia-
bility and compensation.

These two challenges show why backward-looking responsibility, liability,
and compensation should not be taken to cover the whole challenge of L&D.
Further reasons for differentiating responsibilities to help communities facing
climate threats become crucial. These reasons are all forward-looking; they do
not differentiate remedial responsibilities by liability for compensation but for
reasons of capacity and solidarity. Primero, in a situation of urgency, humanitarian
reasons justify helping those in desperate need as quickly as possible. Qué
gains priority for differentiating responsibilities are reasons of efﬁciency. Qué
is relevant in such situations is that those in need of help are helped immediately
by those who can do so most efﬁciently. For differentiating responsibilities, es
differing capacities of agents, such as scientiﬁc knowledge or managerial experi-
ence, shared cultural ties, or geographical proximity, that become most crucial
( Wallimann-Helmer 2016). Segundo, many communities facing L&D, como

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Ivo Wallimann-Helmer

(cid:129) 59

inhabitants of low island developing states and Indigenous peoples, are often
highly vulnerable to changing climatic conditions due to no fault or choice of
their own. This situation demands redress for reasons of solidarity with those
worse off that goes beyond compensatory entitlements (Kolers 2014). Doing
only what is owed according to compensatory justice but nothing beyond
would mean leaving these victims desperate and vulnerable to the negative
effects of climate change (Wallimann-Helmer et al. 2019). They would receive
help only to the extent that their desperate situation is anthropogenically
induced. They would not be entitled to any help for natural climate variability.
Both these reasons seem to justify extending the scope of governance under
the UNFCCC beyond changes in climate conditions attributable “directly or
indirectly to human activity.”2

In one way or another, such forward-looking arguments justifying reme-
dial responsibility provide reasons of capacity and solidarity to support those
facing the threats of L&D. Reasons of capacity are relevant because those in need
of assistance need immediate help from those best able to provide it. Qué es
key for differentiating responsibilities are efﬁciency considerations and not der-
ivations from contributions to threats. This is especially crucial if risks of climate
threats can be described as emergencies (Wallimann-Helmer 2016). Humanitar-
ian reasons express solidarity with those in emergency situations. Reasons of
solidarity deﬁne the entitlements of those undeservingly disadvantaged and in
that way are an expression of solidarity with the disadvantaged (Meyer and
Roser 2010; Meyer and Sanklecha 2017). They focus on the needs of victims
and assign responsibility without backward-looking considerations. Hay
victims below a certain sufﬁciency threshold, and someone must help. Accord-
ing to the capabilities approach, everyone is entitled to a sufﬁcient level of well-
ser, expressed in a list of capabilities that everyone must be able to pursue
(Schlosberg 2012; Sen 2011).

These considerations should not be taken as implying that liability and
backward-looking responsibility should no longer play any role in L&D gover-
maricón. In legal contexts outside of the UNFCCC, liability surely will and must
play its role in climate litigation. Under the UNFCCC, liability will also have to
play its role once the current nonideal situation changes and liability for L&D is
accepted as binding by the parties to the UNFCCC. Sin embargo, these consider-
ations invite further reasons to assign responsibilities for “averting, minimizing
and addressing loss and damage” (Article 8). Forward-looking considerations of
capacity and solidarity are not excluded under the Paris Agreement. Por eso, incluso
though paragraph 52 of Decision 1/CP.21 excludes liability and compensation,
remedial responsibilities can still be assigned. Además, due to the urgency
of addressing L&D for all communities concerned, especially after extreme
weather events and because of the limited scope of liability and climate litiga-
ción, forward-looking considerations will have to play a role in any case.

I thank an anonymous reviewer for pressing me on this point.

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60 (cid:129) Resilience and Nonideal Justice

Sin embargo, in addition to leading outside the scope of the UNFCCC, relying on
forward-looking reasons to differentiate L&D responsibilities poses two other
serious challenges, to which we turn ﬁrst. Their discussion helps to address
the scope challenge in the next section.

The Function of L&D Action

The previous section argues that responsibility for remedial action in cases of
l&D need not be justiﬁed by relying solely on liability and backward-looking
responsibility, and such an approach is not appropriate in all occasions.
Forward-looking reasons of capacity and solidarity provide further arguments
for assigning remedial responsibilities. In the current nonideal circumstances,
these reasons could unfold their full validity in L&D governance under the
UNFCCC because liability as justiﬁcation for compensation is blocked. Cómo-
alguna vez, this suggestion comes with two serious challenges.3 First, there is a risk that
relying on forward-looking responsibility allows the status quo under the
UNFCCC to be justiﬁed with no additional funding for L&D. Segundo,
forward-looking reasons do not establish the crucial relation between climate
change and the L&D to be handled. Discussing these two challenges helps to
understand how to deﬁne L&D entitlements of those in need of assistance under
current nonideal circumstances in UNFCCC governance. This section shows
why L&D entitlements have a function leading beyond mere remedy of L&D
incurred and hence beyond purely compensatory justice. The goal should be
to enable victims of L&D to become able to address all negative climate impacts
adecuadamente.

el primero, most fundamental challenge is well known in all areas of UN
climate governance (Brown et al. 2010; Michaelowa et al. 2019). It concerns
the lack of additionality, eso es, the lack of additional support for L&D gover-
nance beyond support already provided through other channels (robinson
et al. 2021; Shawoo et al. 2021). Justifying remedial responsibilities for L&D
by relying on forward-looking reasons like capacity and solidarity risks justify-
ing the status quo: parties avoid providing additional support for L&D gover-
nance by relying on existing humanitarian or foreign aid. No additional funding
is dedicated to L&D governance because funding for reasons of capacity and
solidarity is already available. In cases requiring humanitarian aid, action is
taken by those capable of helping victims out of their desperate situations.
Foreign aid provided by developed countries is intended to help developing
countries to reach levels of economic development from which they can inde-
pendently foster appropriate living conditions for their citizens. This challenge
stems from the fact that justiﬁcations for humanitarian and foreign aid usually
rely on reasons of capacity and solidarity. These similarities between arguments

3. These two objections were suggested by Fergus Green and Olivia Serdeczny and were extremely

helpful in further developing an earlier version of this article.

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(cid:129) 61

allow L&D ﬁnance to be easily subsumed into other international ﬁnance in
solidarity with the disadvantaged and global poor if capacities are available.
Relying on forward-looking reasons of capacity and solidarity to justify remedial
responsibilities risks bolstering this reluctance to provide additional ﬁnance for
l&D under UNFCCC governance.

This challenge can be overcome by a closer look at the function of com-
pensation for harm. Classical thinking about harm and responsibility for rem-
edy involves duties for the harming party to restore the situation ex ante the
harm. Similarmente, in cases of L&D, compensation is most commonly considered
as the duty of heavy emitters to rectify the L&D incurred and make the victims
whole again. Sin embargo, it would be possible for any institutional mechanism to
restore the status quo ante the harm without relying on the agent causing it.
Such schemes already exist. The UN Declaration of Basic Principles of Justice
for Victims of Crime and Abuse of Power holds that states should compensate
victims if rectiﬁcation is not fully available from the offender.4 Similarly, No-
fault legal systems, as in New Zealand, provide compensation for negligently
caused harm without requiring claimants to prove that any agent was guilty
of causing that harm (Holm et al. 2021). Such schemes assign responsibilities
for remedy to the state or relevant institutions to help victims unexpectedly and
undeservingly in detrimental situations. In both these cases, reasons of capacity
and solidarity deﬁne responsibilities to compensation for harm independently
of who has caused it. What is relevant to justifying entitlements is the kind of
harm incurred but not who has caused the harm in question.

Such schemes narrow the function of remedial action to the goal of
making whole again the victims of speciﬁc harms. Sin embargo, such a goal need
not mean additional ﬁnance or nonﬁnancial support. Such action could easily
be subsumed under humanitarian or foreign aid for victims of undeserved dis-
advantage. Humanitarian aid would be helping restore the status quo ante after
extreme weather events. Foreign aid could be deﬁned as action to deal with
slow-onset events of whatever kind leading to L&D. Subsuming compensation
under humanitarian or foreign aid without providing additional ﬁnance or
support is possible because the deﬁnition of compensation as making good
for L&D avoids the crucial relation between the harm incurred and climate
cambiar. l&D can occur in whatever circumstances, and capacity or solidarity
can serve as reasons to help everyone in detrimental conditions and in need
of support. Hence a deﬁnition of the function of compensation in L&D gover-
nance that only relies on restoring the status quo ante a climate threat is too
general to help overcome the additionality problem.

This leads to the second of the challenges mentioned earlier. The lack of
any relation between forward-looking reasons for remedial action and climate
change is problematic because making good whatever harm has been suffered

4. https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-basic-principles

-justice-victims-crime-and-abuse, last accessed May 30, 2023.

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62 (cid:129) Resilience and Nonideal Justice

for reasons of capacity and solidarity misdescribes the problem at hand (García-
Portela 2023). It describes losses and damages from climate change as disadvan-
tages that can occur for any reason. But compensation in L&D governance under
the UNFCCC must make good L&D occurring for a speciﬁc reason: changing
climatic conditions. This is why a deﬁnition of L&D entitlements under the
UNFCCC must express a speciﬁc relation to climate change. Relying on causality
is the most obvious way and the one most often invoked by developing coun-
intentos (James et al. 2019; Maljean-Dubois 2019). Like the PPP and BPP demand,
emitters or beneﬁciaries from climate change should compensate for what they
have caused by contributing to climate change or beneﬁtting from it. Sin embargo,
forward-looking reasons to assign responsibilities cannot rely on emitters and
the harm they cause to establish the relationship between climate change and
harm. Such reasons rely on the capacities and solidarity of agents to provide
support due to their advantage. These characteristics of agents have no or only
an indirect connection with climate change and could, at least in principle, también
have occurred without any liability for L&D.

Sin embargo, the goal of L&D action under the UNFCCC must not only be to
restore the status quo ex ante a threat or to handle the severe negative impacts of
extreme weather events once they have materialized. Its function is not only to
compensate for L&D. The crucial function of this kind of action is to enhance
comprensión, acción, and support for victims of L&D stemming from climate
cambiar. l&D governance is there not only to make good the harms incurred
but to enable victims to manage these challenges from a speciﬁc source
(Mechler et al. 2019; Mechler and Deubelli 2021). This action aims at man-
aging L&D due to climate change that cannot or will not be avoided. Consecuencia-
frecuentemente, the goal of L&D action becomes both to minimize the harm occurring
and to prepare to redress the harm materializing. This means that L&D gov-
ernance under the UNFCCC should not only restore the situation ex ante
negative climate impacts but enable victims of L&D to address these negative
impacts before and after they have occurred. Being able to address climate
threats implies possessing a sufﬁcient level of capabilities for doing so.
Whether this is given once the situation ex ante an impact is restored depends
on the capabilities a community or society possessed before the climate risks
increased. It depends on what knowledge and ﬁnancial and other resources they
possess and how well they can codetermine L&D action (Holanda 2017;
Schlosberg 2012).

Victims of L&D in many cases do not possess such capabilities to a sufﬁ-
cient extent (Intergovernmental Panel on Climate Change 2022; van der Geest
and Warner 2020). This is exactly why they need support in L&D action. In cases
of economic and noneconomic damage, they often lack ﬁnancial and other
nonﬁnancial resources to replace the capabilities damaged. In case of economic
and noneconomic losses, por el contrario, victims often lack the capabilities to trans-
form livelihoods to maintain levels of capabilities similar to those they enjoyed
before the climate impact. And very often, both aspects are combined. Para

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(cid:129) 63

ejemplo, low island developing states even risk losing their access to deep sea
resources because their land above sea level is at risk of vanishing (Armstrong
and Corbett 2021; Robinson et al. 2021). En consecuencia, “averting, minimiz-
ing and addressing loss and damage associated with the adverse effects of cli-
mate change” (Article 8) can become much more demanding than what liability
and compensation would imply. The next section suggests how to deﬁne these
more demanding entitlements.

Resilience Deﬁning L&D Entitlements

According to the argument of the previous section, Article 8 of the Paris Agree-
ment is more demanding than it ﬁrst appears because respecting the importance
of L&D to enhancing “understanding, action and support” can go far beyond
their mere remedy and compensation (Article 8). Respectivamente, under the
UNFCCC, the goals of enhancing “averting, minimizing and addressing loss
and damage associated with the adverse effects of climate change” mean more
than mere liability for compensation (Article 8). In what follows, I argue that
under the current nonideal circumstances in UNFCCC governance, these goals
should be deﬁned as entitlements to capabilities for resilience to climate threats.
To distinguish L&D action from climate adaptation, I suggest two different con-
ceptualizations of resilience: l&D resilience is the capacity of a system to recover
swiftly after L&D materializes; adaptation resilience is the capacity of a system to
withstand climate disruption. Even though such a deﬁnition of L&D entitle-
ments might appear much costlier than mere compensation for L&D and most
probably leads beyond the initial scope of the UNFCCC, I claim this to be an
appropriate expression of what the parties to the Paris Agreement promised
when agreeing to enhance understanding, acción, and support in relation to
l&D.

In Article 8 of the Paris Agreement, resilience is mentioned as one of the
“areas of cooperation and facilitation.” In its usual meaning, the resilience of a
community or system describes its capacity to handle disturbances of any sort
(Thorén and Olsson 2018). A resilient system can be described in at least two
maneras, and its resilience concerns various factors (Ferguson 2019; Joakim et al.
2015). Primero, a system is resilient if it can absorb or withstand disturbances. En
climate governance, this would be what is most often understood as capabilities
to adaptation: the capacity of a system to avoid L&D or at least reduce its risk to
an acceptable level (Dow et al. 2013). A community that successfully adapts to
changing climatic conditions is able to avoid severe L&D or reduce its risks
respectivamente. Segundo, a system is resilient if it can recover swiftly after L&D
has materialized. This kind of resilience can be identiﬁed with L&D action
because L&D governance deals with negative climate impacts that cannot or
have not been avoided ( Verheyen and Roderick 2008). A community resilient
in this way is able to handle the negative impacts of L&D even though they
materialize with severe consequences to the functioning of the system.

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64 (cid:129) Resilience and Nonideal Justice

Resilience is usually understood as an empirical concept describing the
capacity of a system to handle disruptions. Resilience can become a normative
concept if it is deﬁned as the entitlements of communities to a certain threshold
of capabilities (Thorén and Olsson 2018). Respectivamente, in the case of climate
adaptación, resilience represents the entitlement of communities to be able to
withstand climate threats. With L&D, resilience represents an entitlement to the
capabilities to swiftly recover from L&D materializing after a threat. Both kinds
of entitlement can be understood as thresholds of sufﬁcientarian justice because
they deﬁne minimal entitlements to a certain level of resilience. For climate
adaptación, this level can be deﬁned by the capabilities needed for a system
to withstand disruptions (Schlosberg 2012). A diferencia de, l&D entitlements
can be deﬁned as the capabilities a system needs to recover swiftly from L&D
that cannot or have not been avoided (Wallimann-Helmer et al. 2019). In jus-
tice theory and the capabilities approach, such sufﬁciency thresholds are usually
understood as unconditional entitlements of individuals or communities below
which they should not fall, independently of how their situation was caused
and whether they are responsible for their miserable situation (Casal 2007;
Herlitz 2019). The same could hold in climate governance: adaptation and
l&D deﬁne entitlements to two different thresholds of capabilities to resilience
below which no community should fall. Such unconditional thresholds would
deﬁne entitlements regardless of whether communities are vulnerable due to
human activities or natural climate variability, and regardless of how much they
themselves have contributed to climate change.

Deﬁning L&D entitlements with sufﬁciency thresholds of resilience places
l&D action quite close to climate adaptation. As Toussaint (2020) suggested for
climate litigation, what becomes crucial to distinguish between the two areas of
climate policy is the goal of action to be taken. en l&D action, the goal is to deal
with the negative impacts of climate change that cannot or will not be avoided.
A diferencia de, the goal of climate adaptation is to take action to keep risks of L&D
at an acceptable level or even to avoid such consequences entirely. Hence what
becomes crucial to distinguishing between L&D entitlements and adaptation
entitlements are the different goals ascribed to each ( Wallimann-Helmer
2015). Whether these entitlements can be deﬁned independently of the com-
munities concerned is debated ( Wallimann-Helmer et al. 2019). Some argue
that various measures can be deﬁned as measures for either L&D or adaptation.
Others argue that it must be the communities that assess whether speciﬁc mea-
sures reduce the risks of L&D sufﬁciently for them to count as action avoiding
l&D (p.ej., Holanda 2017). Sin embargo, both deﬁne thresholds of entitlements that
demand support if victims do not possess these capabilities.

Deﬁning L&D entitlements in such a way as sufﬁciency thresholds of resil-
ience has the advantage of securing the relation between climate change and the
goal of L&D governance. In the case of L&D, resilience is deﬁned as the capa-
bilities of a community to handle climate disruptions leading to L&D that can-
not or will not be avoided. Such an entitlement to a threshold of resilience not

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(cid:129) 65

only means that victims should be compensated for the L&D they suffer; también
means that L&D governance should provide resources to develop the capabili-
ties for dealing with L&D due to climate change before they have occurred
(Wallimann-Helmer 2015). Resilience for L&D enables communities to be ready
to minimize the consequences of extreme weather events with, por ejemplo,
early warning systems and insurance schemes. l&D resilience also covers
the development of capabilities to recover after extreme weather events and
to establish the infrastructure necessary. If potential victims of L&D lack the
capabilities to recover swiftly after negative climate impacts, they are entitled
to support. If communities were not resilient before a climate threat materi-
alized, then they are entitled to more than mere compensation. Ellos son
entitled to all the support needed for their community to become resilient to
manage L&D materializing.

This leads to a ﬁnal challenge. If L&D entitlements are deﬁned by thresh-
olds of resilience, the implications of Article 8 of the Paris Agreement may
become much more demanding and may imply expanding the scope of the
UNFCCC. Parties to the agreement not only owe support to ensure compensa-
tion for L&D incurred but are likely also required to foster capabilities beyond
mere restoration of circumstances ex ante a climate impact. Además,
because liability is blocked as a reason for assigning responsibilities, but capac-
ity and solidarity are not, these implications might mean heavier burdens for at
least some countries than if they were obliged to pay compensation only accord-
ing to their contribution to climate change. All this might make it unlikely that
such demands will be accepted under the UNFCCC and hence contradict my
starting point from nonideal theory.5 However, whereas relying on compensa-
tion based on liability is blocked by paragraph 52 of Decision 1/CP.21 of the
Paris Agreement, resilience is explicitly mentioned as an area of cooperation and
facilitation in L&D governance (Article 8). Por eso, demanding that the parties to
the Paris Agreement provide support for reaching certain thresholds of resilience
means merely fulﬁlling this part of the agreement by both enhancing under-
standing of resilience and providing action and support. Such a demand simply
means taking the signing parties at their word, even if the scope of governance
under the UNFCCC has to be expanded beyond anthropogenic climate impacts
as a consequence.

Conclusions

In this article, I argue that Article 8 of the Paris Agreement has much more
demanding implications than ﬁrst appearance may suggest. This is the case
despite paragraph 52 of Decision 1/CP.21, which blocks liability and compen-
sation as the most plausible rationales for differentiating remedial responsibil-
ities in L&D governance. Even though important in legal contexts outside of the

I thank Fergus Green for bringing up this objection.

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66 (cid:129) Resilience and Nonideal Justice

UNFCCC, liability for compensation currently cannot play this role in L&D gov-
ernance under the UNFCCC. I show that reasons of capacity and solidarity can
be employed to differentiate remedial responsibilities in L&D governance. Cómo-
alguna vez, arguing from capacity and solidarity to differentiate L&D responsibilities
also means going beyond mere compensation for L&D as deﬁning L&D entitle-
mentos. Under current, nonideal political circumstances, I suggest thresholds of
capabilities sufﬁcient to reach climate resilience as the deﬁnition for L&D enti-
tlements under the UNFCCC. Resilience not only secures the link between
climate change and L&D entitlements; it also ensures that those in need of assis-
tance receive the support they need to handle any L&D they may face.

Ivo Wallimann-Helmer is a professor of environmental humanities at the
Department of Geosciences, University of Fribourg, and the director of the Uni-
versity of Fribourg Environmental Sciences and Humanities Institute. The core
areas of his work investigate conceptual and normative issues of justice in
climate action and environmental governance, technological innovation for
sustainability, and the fair differentiation of responsibilities in environmental
practice and, más reciente, sistemas alimentarios. His interests concern the conceptual
conﬂicts between the global and intergenerational dimensions of these chal-
lenges and the local and temporal differentiations of responsibilities between
relevant agents. Website: https://www.unifr.ch/env/en/about/members/people
/200532/40c4c.

Expresiones de gratitud

I thank Laura García-Portela, Fergus Green, Simon Milligan, and Olivia
Serdeczny for very helpful feedback on earlier drafts of this article. I am also
grateful to the organizers and participants of the special issue workshop held
at the LSE in June 2022 for a very stimulating exchange.

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