Intangible Losses, Damages and At-Risk Settlements: The Extent of Causality and Burden of Proof for Climate Related Loss and Damage in the Fiji Islands

In this article, a plethora of social, cultural, legal and policy related remedies for harm caused by climate related loss and damage (L&D) were examined, particularly in rural and remote Fiji Islands. The meaning of loss and damage, and its relationship to climate mitigation and adaptation, was discussed. The concept of causality and attempt are considered to expose some criteria that the law uses to test causation in the hope to subject these to a much-needed discussion of climate change and causation affecting international law, domestic law, and climate science. A probabilistic event attribution (PEA) is explored having crucial implications in the development of PEA. When vulnerabilities and thresholds are known, changing risks can be calculated ex ante and, therefore, changing risks can be forecasted. The improvement of the methods allows geographically very specific events to be anticipated and, thus, appropriate adaptation measures can be designed. It is considered (at a conceptual level) how those harmed by loss and damage in Fiji from human-induced climate change may pursue remedies against those who have contributed to the harm. Finally, this article explores what that evidence needs to be (extent of causality and burden of proof) for loss and the damages to be awarded. It is concluded by highlighting the values of probabilistic event attribution (PEA), and how vulnerabilities in Fijian communities continue to be a deep concern. Further work needs to be done with respect to social, cultural, and biological interconnectivity that concretely underlines the importance of climate change and how it diminishes well-being and cultural integrity of Indigenous people by affecting endemic plant species. Disaster Risk Reduction (DRR) needs to be cognizant of social and cultural implications of forced migration. Causality and burden of proof within the legal context has its built-in complexities and, hence, it needs further research.

本文检视了针对气候相关损失与损害（climate related loss and damage, L&D）所引发损害的各类社会、文化、法律及政策救济途径，研究场景尤其聚焦于斐济群岛的农村与偏远地区。本文还探讨了损失与损害的内涵，及其与气候减缓（climate mitigation）、气候适应（climate adaptation）之间的关联。本文围绕因果关系与归责意图的概念展开分析，梳理了法律用于判定因果关系的若干标准，以期推动针对气候变化与因果关系的必要讨论——这一议题涉及国际法、国内法以及气候科学领域。本文对概率性事件归因（probabilistic event attribution, PEA）展开了探讨，该方法的相关研究对PEA的发展具备关键影响。当明确了脆弱性与临界阈值后，即可事前计算风险变化，进而对风险演变作出预测。相关方法的优化可实现对地理针对性极强的事件的预判，由此能够制定适配的气候适应措施。本文还从概念层面探讨了：在斐济因人为引发的气候变化而遭受损失与损害的群体，应如何向造成该损害的责任方寻求救济。最后，本文探讨了在请求裁决损失与损害赔偿时，所需证据需满足的要求——包括因果关系程度与举证责任标准。本文的结论部分着重强调了概率性事件归因（PEA）的价值，同时指出斐济社区所面临的脆弱性问题仍是亟待关注的核心议题。针对社会、文化与生物互联性的相关研究仍有待深化——这一互联性具体彰显了气候变化的重要性，同时阐明了气候变化如何通过影响特有植物物种，损害原住民的福祉与文化完整性。灾害风险降低（Disaster Risk Reduction, DRR）工作需充分考量强迫移民所引发的社会与文化影响。法律框架下的因果关系认定与举证责任规则本身存在诸多复杂之处，因此仍需开展进一步的研究。