Page - 46 - in Loss and Damage from Climate Change - Concepts, Methods and Policy Options

46 I.Wallimann-Helmeret al. Thechallengesassociatedwith identifying the legitimateagents topaycompen- sation and the legitimate claimants of compensation narrow down the number of potential recipients of compensatory payments. This number decreases evenmore whenconsidering theconceptual challenge that strictly speakingcompensationcan only be demanded for anthropogenically inducedL&Dbut not for natural climate variability (Huggelet al. 2016;Wallimann-Helmer2015).Naturaldisasterswithout anyhumancausearetragicandindividualsbeingthreatenedneedtobeassisted.How- ever,thisrequirementofassistancecanonlybejustifiedonhumanitariangroundsand for reasons of distributive justice. They cannot be addressed by appeal to compen- satory justice.This iswhy, inpractice, compensatoryclaims for somespecific (risk of) L&Ddemand the detection of anthropogenic cascades demonstratingwhy this L&Dcanbeattributedtoanthropogenicclimatechange(Huggeletal.2013).Hence, theworry for the advocate of compensatory justice is that somevictimsof climate L&Dmightnotbeharmed inanormatively relevant sense,wherebyconsiderations ofcompensationbecomeunsuitable.Elaboratingonthesedifficultiesbyconsidering individuals as duty bearers and claimants, it becomes possible thatmany emitters andlegitimateclaimantsarenot identifiedeitherasdutybearersorvictims.Emitters only emittingwithin the limits of their fair shares cannot be identified as liable for compensation. Similarly, those individuals notwrongfully harmed, are not entitled to any compensatory payments. These reasons can be taken to be decisive against addressingL&Din termsof compensatory justice.However, considering theCoPP both thesechallengesmustbequalified. AccordingtotheassessmentsoftheIPCCandtheagreementsundertheUNFCCC countries, towitcommunities,candefinitivelybeidentifiedaswrongfulemittersnot beinglegitimatelyexcusedbyignorance(MeyerandSanklecha2017).Atleastsome agentsof industrialisedcountryparties (its citizens, companiesor thecountriesasa whole)definitivelyexceed their fair sharesof emissions (Shue2017).Furthermore, withthepublicationofthefirstIPCCreportitbecomesdifficulttoargueforexcusable ignorance from1990 onwards. This suggestsways of how someof the challenges abovecanbemet.However, even though industrialised countries andat least some of their companies canpotentiallybe identifiedasdutybearers, theCoPPstill only succeeds in justifying some compensation for L&D.As shown above, it can only justify themforsomeL&Dfromclimatechangebutnotforall sinceitonlywarrants paymentsforanthropogenicclimateL&DbutnotforL&Dcausedbynaturalclimate variability.Tobeclear, thisisnotnecessarilyabadthing.Manydevelopingcountries facingclimateL&Dwouldalreadybemuchhelpedif theyreceivedsomeincontrast to no assistance. In addition, a compensatory approach can be said to be simple andmore strongly in line with international lawwhereas distributive approaches arerelativelyuntested in international fora.For instance,consideringenvironmental issues in terms of reparations for injury has been dominant in legal history (the influentialTrail Smelter case is based on “no harm” considerations, see Simlinger andMayer2018forcomplexities inapplyinginternationalenvironmental lawtothis issue). Despite these pragmatic advantages, however, from an ethical point of view it seems highly problematic to only support those facing L&D in coping with part