“Small steps will no longer do. The biggest steps need to be taken by those with the biggest boots.”
– Sauli Niinisto, President of Finland
A long time ago, between 5,000 and 3,000 years ago – pre-history, as they say – the world’s first great seafarers, the Austronesian peoples, began their great seaborne expansion from South East Asia into the Indian and Pacific Oceans. Among the far-flung islands they landed on – as far as Madagascar in the west, and Hawaii in the east – was the Tarawa atoll, a collection of tiny islands surrounding a lagoon in the middle of the Pacific Ocean. Since that first settlement, the culture of the atoll has also been influenced by Polynesian culture, via Samoa and Tonga, and Melanesian culture, via Fiji.
One of the stories told on the atoll is a creation myth: before time began, Nareau the Creator – the Spider Lord – walked alone through Te Bo ma Te Maki, the darkness and the cleaving. When the darkness and the cleaving began merging to form substance, Nareau wove the first beings, the other gods. So that humankind would not be separate from him, the creator ordered his son to kill him, and to make the earth out of his body, the sun from his right eye, and the moon from his left. His brain was scattered across the sky and became the stars. The sky became known as karawa, the ocean was called marawa. And the earth, which was made from the Spider Lord’s body, was Tarawa.
Today, Tarawa is sinking back into the sea. Or, to be more accurate, it is sinking beneath sea levels that are rising due to human-caused climate change. According to current projections, Tarawa – along with the other 31 atolls which make up the Republic of Kiribati – will be wiped from the map by 2100. Actually, rising sea levels will leave Tarawa uninhabitable well before the end of the century. Coastal erosion and increased flooding are pushing people from outlying islands to South Tarawa, which is now one of the most densely-populated areas in the world. The overcrowding is straining natural resources, especially drinkable water. Salt deposits left by flooding seawater make growing crops harder every year, and the salt contaminates what drinking water is left too. The atoll might be unliveable as soon as 25 or even 15 years from now.
Who is responsible for this catastrophe? The answer is pretty obvious: the rich. But that obvious answer is all too often obscured by phrases like “man-made” climate change, which imply that responsibility lies with humanity in general. According to Oxfam, the world’s richest 10 per cent account for 49 per cent of consumption-based emissions. If we look at it historically, The Guardian has reported that on a per capita basis, the United States and countries in Western Europe are responsible for the most historical emissions. Even looking at responsibility through nation-states can be misleading. Not every US citizen bears the same responsibility for the US’s outsized emissions footprint. Instead, it’s the fossil-fuel extracting and burning activities of specific groups of individuals – otherwise known as corporations – that are responsible.
Now we know who is responsible. But how should we measure their responsibility? That is the question legal systems around the world are faced with today. One answer is to look at how law treats other forms of wrongdoing. Here we see that law often speaks in lofty but mysterious phrases. One such phrase, common to Anglo-American jurisdictions, is that the victim of a legal wrong is “to be made whole”. The idea is that legal remedies should put the victim back in the position they were in before the wrongdoing.
So if, for example, I wrongfully dispossess you of your collection of mint-condition The Beatles vinyl records, the law will make me return the records to you. And if I’ve damaged them before they can be returned? The law will try to make you as good as whole – with money. In other words, I will have to pay you a sum of money that represents the monetary value of the lost records, plus a sum of money to compensate you for any emotional damage incurred.
In theory, this might be how responsibility for climate change would be measured. The inhabitants of Tarawa are to be made whole again. But calculations for non-economic loss are notoriously difficult, even in comparatively simple cases involving individuals. Magnify those difficulties to the scale of loss caused by climate change and they start to look insurmountable. What sum of money would compensate you for the loss of your homeland? For the loss of stories connected to that homeland, like the story of Nareau the Creator?
Apart from the difficulty of calculating the amount of compensation, the necessity of translating loss into dollars distorts law’s perception of harm. We can see this distortion in one of the first lawsuits against a fossil fuel company over climate change. In 2015, the New York Attorney General sued ExxonMobil, one of the world’s largest oil and gas companies, over revelations that the company had long known about the threat fossil fuels posed.
Four years later, the judge found entirely in ExxonMobil’s favour. It wasn’t, stressed Justice Ostrager, because he didn’t believe that the company was a major contributor to climate change. Rather, he dismissed the lawsuit because the actual case wasn’t about the damage caused by climate change, but whether or not ExxonMobil misled its investors about the risks of climate change to its own profitability. By that measure, the judge found that no investor had been misled. The point, for our purposes, is that the legal action came in the form of a securities fraud lawsuit because that was the form of responsibility readily applicable to a corporation – a form of responsibility that is all about protecting investors from losses that are already understood to be monetary. No need for translation there.
Are there any other forms of legal responsibility we could turn to? Rather than thinking of responsibility as compensation, we could also think about responsibility as care. To put it simply, those who are most responsible for climate change should be responsible for looking after those most affected. That means not only stopping ongoing climate change by getting to zero emissions, but caring for the people for whom zero carbon targets in 2050 will be too late – like the inhabitants of Tarawa. In concrete terms, Anote Tong, a former president of Kiribati, put it this way: the people of Kiribati must be ensured a viable pathway to “migrate with dignity”.
Responsibility in this sense was recently tested in a case before the UN’s Human Rights Committee. Ioane Teitiota, a Kiribati citizen, witnessed first-hand the effects of climate change on Tarawa, where he lived with his wife in a traditional village. Their wells became salinised, and crops became increasingly difficult to grow. He and his wife saw in the news that there “would be no future for life in their country”. Wanting to have children, they moved to New Zealand, where they sought, and were denied, asylum.
Before the Human Rights Committee, Teitiota argued that New Zealand would violate his right to life if it deported him back to a country with no future. The committee’s decision was a mixed bag. On the one hand, it acknowledged that the risk of an entire country being submerged under water is so extreme that returning someone to such a country could be incompatible with their right to life. On the other hand, the committee said that the timeframe for the impending disaster on Tawara – between 10 and 15 years – was insufficiently imminent to prevent Teitiota from being deported.
The problem here, and with legal responses to climate change in general, is one of slow violence. Rob Nixon, the professor of English and environmental studies who coined the term, described slow violence as violence that “occurs gradually and out of sight, a violence of delayed destruction that is dispersed across time and space, an attritional violence that is typically not viewed as violence at all”. The tragedy of Tarawa is that its slow sinking into the sea isn’t seen for what it is – the violent and irreversible destruction of a society that has lived on the atoll for thousands of years. And until the law learns to see slow violence for what it is, its efforts to hold those responsible to account will continue to fail.