Reparations and adaptation obligations: Alternative approaches to climate change and migration

Abstract

This article responds to the problem of climate change and migration, and the tendency to seek solutions in legal frameworks that protect individual migrants. It analyses two alternative approaches, which argue for facilitating migration as a form of reparations and as a means for meeting adaptation obligations in the international climate regime. After analysing alignments and tensions between these two approaches, the article concludes that legal arguments for State obligations to support adaptation offer one potential means for pursuing climate reparations, including through migration.

Predictions that climate change will contribute to a ‘mass exodus of entire populations’ have generated significant attention from scholars, policymakers, and practitioners worldwide. ¹ In the Asia Pacific, small island States are already being affected and have been at the forefront of attempts to respond. ² Australia’s 2025 National Climate Risk Assessment noted that climate impacts ‘could lead to mass migration’ in the region, ³ following earlier warnings that ‘climate change will increasingly affect where people can live and the resources they can access,’ with significant internal and international migration expected by 2050. ⁴ Such predictions are often used to securitise migration, ⁵ while the other locus of analysis continues to be frameworks that offer protections to individual migrants, such as so-called ‘climate refugees’. ⁶ Yet some scholars and putative refugees themselves have consistently challenged the appropriateness of the term ‘climate refugees’ and of these frameworks to address climate migration. ⁷ The point is not that these frameworks are wholly irrelevant but that they are radically insufficient, particularly where they provide legal protection only after people cross an international border. ⁸ Such protection tends to be ad hoc or come too late, failing to enable people to stay or to prevent displacement. These frameworks may also be problematic, insofar as they individualise a problem that should be seen as collective. ⁹

This article thus explores two alternative approaches that might otherwise seem unrelated, yet which can both be brought to bear on the problem of climate change and migration. The first focuses on arguments for reparations to address the harm caused by the confluence of climate change and histories of racism, colonialism and capitalism. The second approach focuses on arguments that States are legally obliged to adapt to climate change and that other States must assist in these efforts. Both approaches include arguments that States must facilitate migration, including wealthy, high-emitting countries like Australia that must enable and support it. The aim of the article is to analyse alignments and tensions between these approaches, and to discuss the role of international law in both conceptualising and working for adaptation and reparations. It concludes that legal arguments for obligations to support adaptation offer one potential means for pursuing climate reparations, including through migration. ¹⁰ In doing so, the article seeks to prompt further questions and reflections, contributing to a wider conversation about adaptation and reparations.

Migration as a form of reparation

Reparations are a means to redress harm, intended to repair or make amends for damage caused by wrongful actions. In the context of climate change, scholars and advocates have conceptualised migration as a form of reparation for climate harms. Their arguments draw on obligations that arise from historic and ongoing wrongs that include racism, colonialism and capitalism, as well as the disproportionate contribution of affluent countries to the causes of climate change. Carmen Gonzalez, for example, calls for ‘migration as a form of climate reparations for the ravages of carbon capitalism’, which links vulnerability to climate impacts with histories of colonial and post-colonial intervention. ¹¹ Using Central America as a case study, she describes ongoing displacement, the racialisation and exclusion of migrants by the United States (US), and the debt the US owes for continued interventions and a failure to address climate change. ¹² This, along with a breach of the customary international law obligation to refrain from causing transboundary harm, she argues, requires migration as a form of reparation, including assisting with the relocation and resettlement of climate-displaced persons. ¹³

Robyn Eckersley also calls for the admission of migrants from climate-vulnerable countries. She argues that ‘climate refugees’ from small island States have a right to choose where to move, in part because such a choice provides ‘recognition of, and partial compensation for, the injustice and trauma of their loss and damage’. The right to choose is thus a form of reparation for loss and damage. Its counterpart is a shared duty to admit, one arising from the collective failure of every country to address climate change. ¹⁴ E Tendayi Achiume more broadly conceptualises migration as a form of decolonisation and argues that some States have an obligation to admit, specifically colonising countries that must admit migrants from places of colonisation. For Achiume, this provides a basis to argue that all so-called ‘economic migrants’ should be provided rights to admission and inclusion, disrupting traditional notions of sovereignty and border-control. ¹⁵

The focus in approaches that conceptualise migration as reparation is on repair, which is itself relational and requires remedies for those who experienced harm from those that caused it. To this end, self-determination features prominently in such frameworks. Both in demands that use reparations to contribute to world-making – to undo and re-build systems and structures – as well as in more focused calls to facilitate migration, it is seen as critical to return power to people in decision-making. ¹⁶ For migration to be a form of reparation, people must have the ability to choose whether, how and where to move. This requires concrete legal and policy measures that enable affected people to shape decision-making on a range of issues, from relocation and resettlement plans to migration governance, monitoring and dispute mechanisms. It may also require the provision of land and resources to facilitate collective migration, provided by wealthy countries – including Australia – as compensation for climate change. ¹⁷

Migration as fulfilling adaptation obligations

As climate impacts continue to worsen societies will need to adapt, and this process of adaptation will sometimes involve migration. ¹⁸ Migration has long been viewed as a form of adaptation, albeit one that does not always result in positive outcomes. ¹⁹ Under international climate treaties, States are legally obliged to enable adaptation, which include three types of adaptation obligations: to act, to assist, and to cooperate. ²⁰ Adaptation obligations in the climate regime have not yet been widely analysed by scholars nor highlighted by States, in part because adaptation was viewed as potentially distracting from negotiations on strengthened mitigation commitments. ²¹ The Paris Agreement, however, recognises that ‘the current need for adaptation is significant’, ²² while the International Court of Justice (ICJ) recently affirmed that adaptation obligations are ‘legally binding in nature’ and that States are required to ‘enact appropriate measures’, with additional obligations on ‘developed States’ to assist and provide financial resources. ²³ Crucially, the operative principles of the climate regime include principles of equity and common but differentiated responsibilities and respective capabilities. ²⁴ Differentiated obligations help clarify who is due support and who must provide it. The latter includes wealthy ‘developed’ countries like Australia, with both the responsibility and capacity to take the lead in climate action. ²⁵

The adaptation obligations in the climate treaties do not explicitly name the specific measures through which they could be fulfilled, nor do they indicate that they may be met by facilitating or supporting migration. But these obligations exist in a broader normative environment and can be made more concrete through a systemic approach to their interpretation. ²⁶ Such an approach allows for the integration of other relevant rules and principles of international law, which includes the core positive duties associated with international human rights law. ²⁷ These duties become particularly significant when interpreted in light of the operative principles of the climate regime, which include the principle of precaution. ²⁸ The principle of precaution strengthens duties to act when risks are foreseeable, not only when damage is imminent or has already occurred. Concretely, this means that all States are obligated to take adaptive action when climate impacts pose foreseeable risks, to ensure that people have access to essential food, potable water, adequate housing and healthcare. There are multiple ways to accomplish this, but when other measures are no longer sufficient, people may need to move. In such circumstances, States have obligations to facilitate migration, including to plan for and ensure safe, legal movement elsewhere, and to ensure inclusive, participatory decision-making processes. Such migration may not always be the preferred option – indeed it always involves loss, including disconnection from homeland – nor is it a universal solution. But earlier action can offer better opportunities for agency and planning, consideration of rights and needs, and accounting for conditions in places of departure and destination.

Meeting obligations of assistance and cooperation would require Australia and other developed countries to support developing countries in their adaptation efforts, including action on mobility. Such support must be ‘continuous and enhanced’ as required by the Paris Agreement. ²⁹ Support must include the provision of financial resources. But it could also amount to a range of other measures, including facilitating transfer of remittances, assistance with securing land, and providing legal pathways to migrate. The 2023 Australia-Tuvalu Falepili Union treaty offers an example of such a pathway for migration, and it marks the first instance that a bilateral agreement responds to climate risks by creating a legal means to migrate internationally. ³⁰ The treaty’s ‘special human mobility pathway’ enables Tuvaluans to live, study and work in Australia, operationalised through an annual visa programme for 280 Tuvaluan citizens to temporarily or permanently migrate to Australia. ³¹ It is worth noting that the treaty makes explicit ‘the desire of Tuvalu’s people to continue to live in their territory where possible’ and commits the two countries to cooperate to help Tuvaluans to stay in their homes, in part by ‘promoting Tuvalu’s adaptation interests to other countries’. ³² In this way, the treaty recognises the desire to stay and the benefits of mobility, and Australia’s role to support both. However, the treaty has been subject to criticism, seen as undermining Tuvalu’s independence and sovereignty. ³³

Tensions and alignments

There are sound arguments that States are obligated to facilitate migration both as a form of reparations and as adaptation to climate change. However, these two lines of argument have developed separately, and there are both potential tensions between these approaches as well as important alignments.

The first area of tension and alignment is temporal. Reparations generally look back to address past harm, while adaptation is a process that looks forward, aimed at current conditions and preventing or reducing harm expected in the future. Yet both adaptation and reparations can consider the past to envisage ways ahead. The reparative argument recognises how historical injustices have shaped the present, to call for the admittance of migrants from countries made vulnerable to climate change by extractive practices, racism and colonialism. This context heightens exposure to climate harms, and thus also creates the vulnerability that adaptive actions can address. While the concept of vulnerability has been critiqued for being narrow, ahistorical and deficit-focused, ³⁴ the Intergovernmental Panel on Climate Change (IPCC) now recognises the role of ‘historical and ongoing patterns of inequity such as colonialism’ in exacerbating vulnerability, as well as the importance of ‘equity, inclusivity, and rights-based approaches’ to adaptation. ³⁵ In this light, arguments for adaptation can also explicitly take systemic injustice and past harms into account, as a key source of present and future vulnerabilities. Adaptation can also be anticipatory. It need not be remedial and does not require that the specific causes or perpetrators of past harm be established, with action instead contingent on foreseeable risks and impacts. Thus, it is often easier to establish who must take action to adapt, compared to who must provide reparations. If climate impacts pose risks, then a State is obligated to act. This duty arises regardless of the source of the risks or whether harm has occurred. Reparations, however, are tied to the cause of harm and should therefore fall more squarely on countries in the Global North. ³⁶ Yet, in the context of assistance with migration, this distinction may have limited material impact.

This raises a second area of potential tension and alignment between how the anticipatory frame of adaptation and the remedial frame of reparations conceptualises who has obligations to support migration. The principles of equity and differentiated responsibility, enshrined in climate treaties, provide a basis to highlight the historical causes of climate vulnerability and harm. These principles are central to determining who is owed support and who must provide support for adaptation and reparations. They also bolster obligations that climate treaties create, which require developed countries to provide financing and support for adaptation. Differentiated support obligations apply to those countries that contributed most to the causes of climate change. Arguments that situate migration within frameworks for adaptation and reparation both highlight the actions and assistance owed by countries that caused the climate crisis. This is important because the burden of marshalling the resources necessary for migration should not be the responsibility of the individual migrant or groups of migrants alone. But obligations to support adaptation are also open to broader interpretations that invite action from States with the capacity to assist. ³⁷ In other words, differentiated obligations to support adaptation apply to all the same States from whom reparations are being demanded plus other potential States as well. However, whether to meet adaptation obligations or provide reparations, wealthy countries like Australia have a duty to provide support. The different sources of these duties can reinforce calls for action, offering advocates leverage to argue that, for example, Australia must cooperate to provide financial assistance, legal status for migrants, and to change migration policies and processes.

The different sources of duties may also entail different sources of funding, raising the third area of potential tension or alignment. As discussed below, demands for reparations often look beyond existing legal frameworks, and thus would not necessarily draw on established mechanisms for funding. There is already an overall shortfall in climate finance, particularly for adaptation. ³⁸ The costs for adaptation are rising, with financial commitments falling far short of the estimated amount needed. Financing more often targets mitigation, rather than adaptation, although total funding for adaptation is increasing. Yet gaps in financing are widening, made worse by the tendency to offer support as loans rather than grants. ³⁹ A nascent loss and damage fund is being operationalised, which raises questions about whether contributions will be considered separate from required adaptation finance. Ideally, funding for adaptation and loss and damage will be complementary and coordinated. At worst, they will come at the expense of one another and make it more likely that developed countries will not meet their adaptation obligations of assistance and cooperation.

Finally, there are potential tensions and alignments between which rights are foregrounded by the two approaches. Both arguments for migration as reparation and legal obligations to enable adaptation, including by facilitating mobility, centre community-led processes and choice about where and whether to move. Procedural rights are central to how migration is perceived and undertaken. When such rights are not incorporated, and people are not consulted, solutions that appear adaptive invite criticism, as has happened with the Australia-Tuvalu Falepili Union Treaty. ⁴⁰ Procedural rights fit well into the structure of the climate regime, given the Paris Agreement’s recognition of human rights obligations and the rights of migrants in its preamble, the acknowledgment that adaptation action should be participatory, and the cooperative obligation to enhance public participation and access to information. ⁴¹ As legal obligations, procedural rights must be integrated into decision-making, creating duties to provide information and ensure participatory processes. ⁴² These processes offer a forum to begin to bring together the forward-looking needs for adaptation with backward-looking aims of reparations and climate justice. Yet meeting procedural rights – and ensuring participatory processes – does not preclude a state from taking specific adaptation measures, even if they do not accord with the choices affected individuals or communities would make.

In contrast, self-determination is a collective right that empowers people to make decisions regardless of whether they are a State’s preferred course of action. Self-determination is essential to arguments for climate reparations. It is both a legal norm and something inherently more. It features in human rights treaties, in the United Nations Charter, and has arguably risen to customary law status. ⁴³ Accordingly, it could be integrated into adaptation obligations much as other human rights are, and it is particularly relevant to inform adaptation decisions for communities facing shared risks. Its application and content, however, can be contested, and conflicts can arise in its exercise alongside individual rights. Nevertheless, the processes that self-determination would entail could help bridge the gap between procedural rights and actual choice, which could produce different decisions in the face of similar risks. These differences must be managed, as do varying preferences, balancing plans to move with decisions to stay, and the range of ways adaptation can occur.

Horizons of possibility

As the previous discussion explores, there are various alignments between arguments for facilitating migration as a form of reparations and as a means to fulfill adaptation obligations. However, there are important ways that these two approaches anchor their arguments to different sources. While those that call for reparations can use international law to support their claims, ⁴⁴ scholars and advocates also make claims that go beyond legal frameworks – and at times criticise the law – based on broader moral and ethical obligations. Moral claims emphasise past and ongoing harm, unfair distribution of impacts, and the need to repair the relationships that led to such distribution. ⁴⁵ Reparations are thus viewed as a duty of private actors as well, owed by fossil fuel companies to redress their wrongful acts and failure to meet moral responsibilities. ⁴⁶ Legal principles can inform reparation frameworks, and legal developments ‘demonstrate that climate reparations can evolve from moral aspiration to enforceable duty.’ ⁴⁷ Yet claims for reparations that use existing legal frameworks also raise concerns about their limitations, with the law itself viewed as part of the problem that needs to be transformed. Maxine Burkett, for example, argues that international law is complicit in the racialised distribution of environmental degradation and impacts. Existing legal frameworks are therefore insufficient to address compounding crises from climate change and its impacts. She further highlights the clear limits to migration governance that fail to map onto efforts for climate justice. ⁴⁸ Jaya Ramji-Nogales makes a similar, more general argument that international law creates and exacerbates migration crises. It enables border controls, detention and coercive regulations that push people to undertake precarious journeys. ⁴⁹

These arguments are convincing. International law reflects the structures and politics in which the international legal system arose, with enduring impacts from colonialism, global power imbalances and continued resource expropriation. ⁵⁰ This system can maintain difference and exclusion, raising difficult choices about whether and how to engage with international law. Envisioning what reparations should entail need not look to the law to define the horizons of possibility. ⁵¹ Nor, given its inequities, is it appropriate to expect the international legal system alone to determine what historical emitters and colonisers owe to those they have harmed. There is, however, a distinction between how such reparative horizons are conceptualised and the multiple ways to work towards them. On the one hand, the content of adaptation obligations can be informed by the possibilities envisioned by calls for reparations, and their recognition of responsibility for past harm and its repair. This can provide the moral clarity needed to shape urgent climate action, and take it forward in various ways that include the law. On the other hand, recourse to legal arguments can be a tactical decision, which draws on tools that can be used for functional ends. ⁵² Strong legal claims can also make non-legal demands actionable. In this regard, fleshing out the content of international obligations can strengthen calls for action from high-emitting countries, to do more within their borders and to support adaptation elsewhere. A failure to do so, and to meet international obligations, can open the door for legal consequences that include full reparations. ⁵³ The scope of reparations is often more ambitious, and can include a world-making, or re-making, that actions under legal frameworks alone are unable to achieve. Adaptation efforts can and must contribute, but they will ultimately be transformative only if political and moral levers are more effective in prompting action.

In this sense, the legal argument that States have adaptation obligations which must be met can be one potential part of larger projects for climate reparations. Both are premised on addressing some degree of unavoidable damage that has occurred, is occurring, or is anticipated. While the impetus for action can differ, adaptation can be a form of reparation. The Human Rights Committee, for example, called for Australia to make ‘full reparations’ to Torres Strait Islanders for violation of their human rights, which included adequate compensation, community consultation and continued adaptation measures to ensure safe living conditions. ⁵⁴ Likewise, both State action to facilitate adaptative mobility and migration as reparation can help address displacement, whether to prevent it from occurring or to provide a means to safely migrate after displacement. Such a perspective affords a role for law, now and as it evolves, to work with and develop cooperative frameworks that help contend with the challenges climate change creates, including those related to human mobility.

Conclusion

Warnings of mass international migration triggered by climate change are dire. This is warranted, although such warnings also risk being used to securitise migration. What is thus urgently needed is for scholars and practitioners to develop alternative approaches that not only avoid treating the issue as a security problem but are also able to move beyond limited solutions that focus on protections for individual migrants. This article describes two such approaches that understand migration as reparations and migration as adaptation, and described their basis in and beyond the international climate regime. The two approaches may seem unrelated, insofar as reparations seem oriented to harms of the past and adaptation aims at harm now and in the future. Yet legal obligations for adaptation can be invoked as a means for looking ahead that takes past harm into account, while claims for reparations also envision ways forward that are predicated on looking back. As the article has demonstrated, both lines of argument can be turned towards migration. Both can be used to insist that migration must be enabled and supported by wealthy countries such as Australia.