Symposium: Climate Change in an Unequal World: Does International Law Matter?
Addressing Loss and Damage:
The Unanswered Call for Climate Reparations
by Julia Dehm
Published on 21 September 2022
The Alliance of Small Island States (AOSIS) has been raising the issue of compensation for climate impacts since at least 1991 while the United Nations Framework Convention on Climate Change (UNFCCC) was still being drafted. Yet in the international climate regime, this demand for reparative justice has been persistently evaded due to developed countries’ refusal to discuss any compensation of historical harm or anything that might give rise to liability. The unresolved question of loss and damage from climate change needs to be understood as a question of reparative justice for historical harms, namely historically emissions that industrialised countries bear the overwhelming responsibility for. They benefitted from these harmful acts unjustly and to the detriment of others. Since these historical and ongoing emissions have existential consequences for people and ecosystems around the world, they demand repair.
Climate change intensifies existing injustices and exacerbates structural inequalities, as those who did the least to cause the problem who will suffer its greatest effects. A recent study quantified each country’s share of responsibility for global emissions in excess of a planetary boundary of 350ppm (we are currently at 417ppm) and found that countries of the Global North were collectively responsible for 92% of these excessive emissions. Earlier studies have shown that just ninety companies are responsible for two-thirds of global emissions since the Industrial revolution. Yet, it is the peoples of the Global South and Indigenous communities, who are already most economically and socially marginalised that will bear the worst impacts of climate change. Vulnerabilities to climate impacts are shaped by drivers of inequality such as gender, race, ethnic origin, age, level of ability, sexuality and diverse gender orientations. Already five million deaths a year are linked to climate change, and climate disasters are costing over $100 billion annually, and these figures are projected to increase as climate change intensifies.
The issue of ‘loss and damage’ did not appear in the work programme of the UNFCCC until fifteen years after the negotiation of the UNFCCC, when it was included under ‘enhanced adaptation actions’ as part of the 2007 Bali Action Plan. In 2013, in a major breakthrough, the Warsaw International Mechanism for loss and damage associated with climate change impacts (WIM) was established. The WIM has three core functions: (1) enhancing understanding of approaches to address loss and damage, (2) strengthening dialogue coherence, coordination, and synergies between relevant stakeholders, and (3) enhancing action and support to address loss and damage in vulnerable developing countries.
The treatment of loss and damage was one of the controversial aspects of the Paris Outcome – the Paris Agreement and the COP21 decision that accompanied it. Article 8 of the Paris Agreement, recognizes: ‘[t]he importance of averting, minimizing and addressing loss and damage associated with the adverse effects of climate change, including extreme weather events and slow onset events, and the role of sustainable development in reducing the risk of loss and damage.’ However the accompanying COP decision included a clause that Article 8 of the Paris Agreement ‘does not involve or provide a basis for any liability or compensation’. No new institutional mechanism was established, but the existing WIM was ‘anchored’ in the Agreement, and subject to the authority of the Conference of the Parties serving as the Meeting of the Parties to the Paris Agreement. While simply having loss and damage included as a ‘third pillar’ – alongside mitigation and adaptation – in the post-2020 climate regime was a major diplomatic victory for developing country parties, much of the work of the WIM has focused enhancing understanding and strengthening coordination, and there has been ‘very little of substance to enhance action and support to address already occurring loss and damage’.
The WIM’s workplans have focused on enhancing cooperation and facilitation in relation to slow onset events, non-economic loses, human mobility, comprehensive risk management approaches and action and support such as finance, technology and capacity-building to address loss and damage. My research has shown that even when discussions do finally address the fraught issue of financing, the focus has been on support to establish insurance mechanisms and financial tools including catastrophe bonds. Through these processes of prudential risk management, insurance and its financialisation, countries of the Global South are being required to take responsibility for their own vulnerability, and to mediate this through engagement with financialised markets. These approaches thus locate responsibility to manage risks with the vulnerable nation state of the Global South rather can impose responsibility and accountability on the countries and corporations most responsible for causing the climate crisis.
Since Paris, there have been a number of dialogues to try and progress loss and damage, the Suva expert dialogue in 2018 and in 2019 the establishment of the Santiago Network to catalyse technical assistance on loss and damage. In the last days of COP26 in Glasgow in 2021, China and the G77 launched a proposal for a Glasgow Loss and Damage Facility to provide finance to vulnerable countries in the last few days of the conference. However, this proposal was not included in the Glasgow Climate Pact or other COP decisions. This proposal was blocked by countries of the Global North such as the EU and the US. All that could be agreed upon was the ‘Glasgow Dialogue’ a discussion between relevant stakeholders to discuss arrangements for funding to avert, minimise and address loss and damage. Additionally, a small amount of funding was pledged to the Santiago Network to support technical assistance for the implementation of relevant approaches to avert, minimize and address loss and damage. It was a bitter outcome for Global South states: while small amounts of finance were provided for technical assistance, countries of the Global North again refused to consider financial compensation to redress the harms of climate change. Again, we see the same processes of persistent evasion of accountability, liability and responsibility from those who have caused the climate crisis.
The question of loss and damage again took centre stage at the Bonn intersessional held in June 2022, with the G77 and China again pushing to get the Glasgow Dialogue and the proposal for a loss and damage facility onto the official negotiating agenda. However, the decision to appoint the US – a historical blocker of action to address loss and damage – alongside Singapore as the chair of the Glasgow Dialogue, is not an encouraging sign for COP27 in Sharm El Sheikh, Egypt later this year.
What is constantly foreclosed in the institutional debates on loss and damage is a recognition of the ‘climate debt’ owed by Global North countries to the peoples of the Global South. Currently, Vanuatu is pursuing efforts to seek an advisory opinion on climate change from the International Court of Justice (ICJ). Although previous attempts to bring climate change to the ICJ were unsuccessful, this initiative is gaining support and an opinion from the court on international law obligations relating to climate change is increasingly likely. Crucial now will be how the question put to the court is framed. It is interesting to note that in voicing its support Australia stressed that the question put to the court should focus on the future-obligations countries rather than address responsibilities arising out of unequal historical emissions: ‘Because it’s very important that we just don’t look at what has occurred in the past in terms of emissions but continue to put pressure on all countries, particularly major emitters, into the future to reduce their emissions.’ It is important also to acknowledge that the current state of customary international law cannot fully address all the past and ongoing harms caused by historical emissions. The intertemporal principle limits state responsibility to those acts that were internationally wrongful at the time they were committed. Thus, international law could at best provide a remedy for greenhouse pollutants emitted after there was a scientific consensus about the dangers of climate change and it was foreseeable that excessive emissions would cause harm to other states and areas beyond national jurisdiction.
Because international legal principles and tests operate in various ways to constrain historical responsibility, we need to expand our thinking beyond the traditional mechanisms offered by the existing legal system. Sarah Riley-Case and I have suggested that calls for reparations provide an overarching frame for an ethic and practical measures that could address these demands. We highlight how the struggles of Third World, Black, Latinx, Asian, and Indigenous jurists to reform the global economy and obtain reparation are instructive in this regard. Climate reparations would need to entail, forward-looking program for states, corporations and institutions of the Global North to cede their monopoly over economic relations, for redistribution to prevent climate change everywhere, for repatriating the lands of Indigenous peoples, and for finally prioritising adaptation and redress for loss and damage.
As Olúfhemi O. Táíwò has recently argued, reparations must be a ‘construction project’: in order to contend with the immense scale of injustice requires ‘thinking more broadly about how to remake the world system’. Following this, because climate change is inextricable from the ‘unfinished business of decolonization’, solutions must entail the full decolonization of international law. Similarly, Sahar Shar has identified that to fully comprehend, let alone to start to repay such a ‘climate debt’ requires moving beyond the confines of Western epistemologies or worldview given that ‘[t]he Global North owes a debt that we cannot fully comprehend with the cognitive tools given to us by Western worldviews’. Moreover, responding to this demand, she suggests, requires an ethics of relationality and connectedness and a ‘constellation and commitment’’ that has as their collective aim of ‘the profound transformation of the global system and national economies’. The questions of loss and damage raises a profound demand of reparative and compensation justice that the current international law regime has persistently avoided and evaded. Yet, it is a demand for justice that will not go away; rather the movement making these demands is growing in strength and power.
Julia Dehm is a Senior Lecturer at the La Trobe Law School. Her scholarship addresses urgent issues of international and domestic climate change and environmental law, natural resource governance and questions of human rights, economic inequality and social justice.