Transitional justice – a theory and practice enabling purposeful transitions from periods of deep injustices into more peaceful regimes  – was probably not on anyone’s mind during the last days of COP21, the UN conference that led to the Paris Agreement in December 2015.

However, Paragraph 52 in the Decision text – which specifically excludes liability by developed countries for “Loss and Damage”, or climate change related damages that poorer countries cannot adapt to – remains controversial.

Climate change negotiations are unique in many ways, but they are not the first time humans have faced tensions about the ideal relationship between responsibility for past and future action.  And the fears and frustrations that surround this liability debate are exactly why the climate community might be wise to take a long, hard look at transitional justice as a source of insight for climate negotiations.

Can Transitional Justice Approaches Help?

A range of transitional justice processes have emerged, and continue to be developed, as many countries have been faced with the challenge of re-building society and social solidarity after periods of injustice, violence, and oppression.

Although there are key differences in context, transitional justice experiences could indeed provide insights for navigating the difficult political territory between recognising complex, historically rooted justice claims and a future that demands solidarity and collective action.  For instance, many efforts have featured some limits to liability in order to create political space for change. But successful ones have balanced this with actions designed to nurture trust, solidarity and forward-oriented change.

In a recent workshop co-hosted by Climate Strategies and the Konrad Adenauer Stiftung and supported by KR foundation, participants explored possible insights the climate regime could glean from transitional justice experiences despite the differences in context.  Participants included transitional justice scholars and practitioners, academic and broader civil society climate policy experts, and a range of political decision-makers and stakeholders.  This was the second workshop included in the project “Evaluating peace and reconciliation to address historical responsibility within international climate negotiations”.

One clear message from these discussions is that transitional justice processes are essentially focused on repairing and changing relationships amongst those engaged in deeply damaging conflicts and who are unavoidably bound together.  The key to understanding transitional justice is that it isn’t primarily about compensation for past harms, but about stabilising society and building a sense of solidarity that would allow for a more peaceful future.

However, this movement from conflict to solidarity does not happen automatically or by ignoring past justice claims.  Instead, efforts to acknowledge responsibility are seen as essential in order to allow societies to build solidarity and move forward.  These efforts differ by context and there are a range of mechanisms involved, but they all work by including recognition of responsibility in the consolidation of a new regime.  Responsibility from this perspective is as much about creating legitimacy and buy-in for a future-oriented regime as it is about looking backwards.

A second message was that successful transitional justice processes typically involve multiple mechanisms in order to address the underlying fears and concerns of all involved. In some cases, threats of trials have been crucial in generating the political will needed for productive regime change or consolidation.  However, legal punishment alone would not result in a successful transitional justice process either.

Relying only on the court system is too expensive and unwieldy in light of the harms encountered in transitional justice (or climate) contexts to either genuinely ‘do justice’ or provide the basis for building a more cooperative future. A ‘punishment only’ approach is also unlikely to create the political space or motivation needed for those potentially facing liability to participate.

Finally, it is important to remember that the post-Paris regime is still being created.  The Paris Agreement forms a framework, but interpretation and implementation will extend over the next many years.  How Parties see each other over time, and on how successful they are at building the depth of trust, and solidarity needed for implementation will be crucial for the Agreement to become an effective and legitimate.  This is an ideal time to be thinking about how to enable the type of relationships conducive to the level of action we need.

Achieving a 1.5/2C world will absolutely not happen without massively increased mitigation from all Parties.  Much more support, action and cooperation on all fronts is required in order to facilitate rapid development of low carbon pathways for all countries.  Simultaneously, tensions about historical responsibility and liability are not going to disappear as long as those facing the worst climate impacts do not feel heard, recognised and genuinely included within global climate efforts.

The international climate regime cannot afford to ignore lessons about how to build solidarity, repair damaged relationships, and build trust and cooperation.  Focussing on either only the past or only the future is unlikely to be a winning strategy. Transitional Justice is not a perfect analogy to climate change policy, but even imperfect analogies provide seeds for creative approaches to old problems.

Workshop presentations and a discussion paper emerging from the Climate Strategies project can be found here.

Interested in some of the concrete details and ideas that are emerging from this project?  We regularly post work emerging from this project, keep checking back here.

About the Author

Sonja Klinsky is Senior Sustainability Scientist at the Julie Ann Wrigley Global Institute of Sustainability, Arizona State University and Climate Strategies Member.