This is part II of a series on: Why Nations Should Support Mechanisms For Financing Needed Adaptation and Loss and Damages From Climate Harms That Create Climate Change Refugees.
Part 1 explained that climate change is already creating millions of refugees and threatens to create many millions more.
Part 2 will cover why relevant international law on causation of trans-boundary harms is consistent with the creation of a mechanism for financing loss and damages from climate change induced harms and thus why developed nations should support the creation of such a mechanism.
V. International Law On Compensation for Loss and Damages (L & D) Caused by Trans-boundary Caused Harms.
Nations agreed under the 1992 UNFCCC pro Preamble:
Recalling also that States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction (UNFCCC, 1992, Preamble) .
Thus governments expressly agreed in the 1992 UNFCCC that they had a duty to abide by the “no harm” rule which required them to prevent activities within their jurisdiction from harming others beyond their borders. Yet they were already bound by the “no harm” principle because it is a principle of customary international law. In international law, customary law refers to the Law of Nations, or the legal norms that have developed through customary exchanges between states over time.
The history of L&D in climate negotiations dates back to 1991 when the Alliance of Small Island States called for a mechanism that would compensate countries affected by sea level rise. The concept of loss and damage made it into a climate decision coming out of a climate negotiations when in 2010 the so-called loss and damage work program was initiated at COP16, which finally lead to the establishment at COP19 in 2013 of a body to deal specifically with issues relating to loss and damage: the Warsaw International Mechanism on Loss and Damage (or WIM for short). With the inclusion of Article 8 of the Paris Agreement in 2015, loss and damage has now become firmly installed as a thematic pillar under the United Nations Framework Convention on Climate Change (UNFCCC). Under Article 8 of the Paris Agreement, all nations agreed;
1. Parties recognize the 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.
2. The Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts shall be subject to the authority and guidance of the Conference of the Parties serving as the meeting of the Parties to this Agreement and may be enhanced and strengthened, as determined by the Conference of the Parties serving as the meeting of the Parties to this Agreement.
3. Parties should enhance understanding, action and support, including through the Warsaw International Mechanism, as appropriate, on a cooperative and facilitative basis with respect to loss and damage associated with the adverse effects of climate change.
UN Paris Agreement, 2015, Art 8
Determining a nation’s responsibility for specific climate change caused harms can be challenging because climate change damages are the result of a multitude emitters, emitting activities, and emitted gases. It is, thus, evident that the question of how to determine responsibility among nations when allocating responsibility for climate harms and damages is a challenge which cries for a negotiated set of rules that enable rational comparison among nations that failed to prevent activities in their nations from harming others beyond their borders.
In common and civil law the principle of joint and several liability is recognized as a method for allocating responsibility among multiple defendants. But no such rule exists in international law.
Yet human induced climate change has scientific features that could provide the basis for negotiating rules for allocating responsibility for climate harms. The amount of harm caused by climate change is a function of atmospheric GHG concentrations and background climate conditions which change seasonally. Atmospheric CO2 has features that are different than other air polluting substances that have pofound policy implications. CO2 mixes well in the atmosphere and is very long lived. Although approximately 80% of CO2 emissions are removed by carbon sinks in 100 years, some stay in the atmosphere for tens of thousands of years contributing to climate change harms everywhere for a very long time.
As we have seen earlier in this discussion, climate change has features that other environmental problems dont have which has profound implications for policy including the fact that all CO2e emissions contribute to atmospheric Co 2 concentrations globally and are long lived in the atmosphere thus contributing to harms everywhere.
In determine whether climate harms are attributable to the failure of a nation to comply with its responsibility to prevent activities within its jurisdiction from harming others, historical experience could be used to link projected climatic shifts with their probable physical, economic, social and human impacts (e.g., the probable impacts of temperature increase or excessive rainfall on ecosystems, populations and agricultural productivity, or probable impacts of sea level rise on coastal land area and infrastructure).
Baseline information might include, for example, average number of days of drought over a period of years, average annual or seasonal rainfall over a period of years, or average frequency and intensity of extreme weather events.
VI. National Legal Responsibility for Breach of the No Harm Rule
The no harm rule is understood to be an obligation of a nation to prevent foreseeable harm beyond a nation which has been interpreted to require nations to act to prevent harm when nations have;
(i) the opportunity to act to prevent harm:
(ii) foreseeability or knowledge that a certain activity could lead to transboundary
damage; and
(iii) have taken proportionate measures to prevent harm or minimize risk.,
WWF-UK-2008, Beyond Adaptation, (2008:18)
VII. The Opportunity to Act has Long Existed
A State can only fail to exercise due diligence with respect to a specific prevention duty if it does not act where it otherwise could have. In the framework of climate change damage, almost every State has had the opportunity to take measures to prevent damage or to minimize the risk of damage. Each ton of a GHG not emitted, and every carbon sink preserved in the long term reduces the risk of further damage.
IX. Proportionate Measures Were Not Taken
In order to determine whether any nation took proportionate measures to avoid climate caused harms that created refugees ideally. any critical analysis would have to consider the atmospheric concentrations of greenhouse gases that triggered the harm and then consider whether that nation took steps to reduce their greenhouse gas emissions to their “equitable” share of global missions that were responsible for the atmospheric concentrations that caused the harm. Such analysis would likely lead to the conclusion that zero global emissions were necessary to avoid the climate change induced har that caused the transboundary harm. . Yet as we have seen in this first part of this discussion zero greenhouse gas emissions have been necessary to achieve the Paris agreement’s warning limit goals of 1.5°C but no greater then 2°C. In addition, the world needs to reduce global emissions to net zero to avoid destabilizing several climate “tipping points” several of which are already showing alarming signs of destabilization. Whatever the atmospheric concentration is deemed adequate to prevent the harms that will minimize the suffering of climate caused refugees, and to determine any nation’s equitable share, governments have to grapple with what “equity” requires of the nation.
Although reasonable people may disagree on what equity expressly requires of a nation to reduce its GHG emissions, the Intergovernmental Panel on Climate Change (IPCC) said its 5th Assessment report that despite some ambiguity about what equity means:
There is a basic set of shared ethical premises and precedents that apply to the climate problem that can facilitate impartial reasoning that can help put bounds on the plausible interpretations of ‘equity’ in the burden-sharing context. Even in the absence of a formal, globally agreed burden sharing framework, such principles are important in expectations of what may be reasonably required of different actors (IPCC, 2014, AR5, WGIII, Ch.4.pg 317).
The IPCC went on to say that;
(T)hese equity principles can be understood to comprise four key dimensions: responsibility, capacity, equality, and the right to sustainable development (IPCC, 2014, AR5, WGIII, Ch.4, pg 317).
Nations were already required under the Paris agreements “transparency” mechanism to explain periodically how they determined what equity requires of them when they established their NDC. Yet a 2015 study of 15 nations NDCs revealed that nations nor their NGOs demonstrated an understanding of what “equity” required of them.. (IUCN, 2015).For this reason, any mechanism to fund loss and damages will have to grapple with what equity requires of it, a matter which will be raised in any mechanism for loss and damages.
X. Why Developed Nations Should Support A Mechanism for a Adaptation and Loss and Damages Funding For Harms that Affect and Cause Refugees .
Nations have not only agreed to be bound by the no harm principle, they have agreed that they have a duty to cooperate to develop rules regarding compensation and liability.
States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction. Rio Declaration, 1992` Principle 13,
The harms suffered by refugees may require negotiations for recovery for both economic and non-economic damages including rights to adequate temporary housing, access to adequate health care, and food,
Why would Parties ratify liability and compensation schemes? Attaching clear liability and responsibility for the transboundary consequences of environmental pollution helps to enforce regulatory regimes established to protect the environment. Participation in liability and compensation regimes reduces uncertainty for States which might otherwise have to cover loss and damage caused by their citizens and incurred by citizens of other States when adequate compensation cannot be obtained from the responsible parties. These regimes also reduce uncertainty for potential victims, by ensuring the availability of a certain minimum level of compensation and elaborating procedures for making claims. Finally, these regimes reduce risk for those investing in business operations that engage in activities associated with risk, by defining limits of liability.
As the preceding Section V explains, there is a sound legal basis under customary international law and the UNFCCC for States seeking compensation for damage and loss resulting from the impacts of climate change. Nevertheless, each individual case would meet with a number of challenges under existing law, among them the apportionment of responsibility between the various countries that have acted in breach of the no-harm rule. They would also be likely to require specially-commissioned scientific investigations with attendant costs, for in relation to causation and damage assessment. These cases could proceed in an forum, with good prospects of success, adding to the potential liability and litigation risk uncertainty that already exists with respect to private claims and possible tort actions.
Such individual cases should not, however, be the path of choice. International law is based on the notion of cooperation and the avoidance of adjudication – where possible – in favor of diplomatic solutions. Cumbersome individual cases should not be necessary, given that the climate regime is based on the notion of cooperation and good faith. The view has been expressed by international law scholars that States even have a legal duty to provide negotiated solutions where environmental damage is expected to occur, so that prompt and adequate compensation can be obtained in practice.
Although the issues of who pays what, to whom, and when, will be challenging to resolve, and ratification of such an instrument could face substantial domestic hurdles, a negotiated treaty to address the unavoided and unavoidable loss and damage is likely to be the only appropriate and practical solution to addressing climate change damage. The ‘AOSIS Proposal’ of 1991 provides a glimpse of what could be conceivable – not least as it only covers one type of damage.. International law principles and precedent provide support for the negotiation of a compensation instrument, as a necessary and appropriate response to this regulatory gap. The current negotiations leave room to begin this discussion.
Nations should also support financing adaptation and mechanisms to compensate those outside their borders for harms created by activities within their borders because, as the 2008 US Army War College report concluded, such harms are likely to cause social disruptions including violence against those who caused climate induced suffering. (Pumphery, 2008) The Army War College also concluded after describing in detail the higher levels of conflict and chaos that expected increases in unplanned population movements will cause, the US support for a mechanism which deals with the human and political turbulence will be viewed as a public good that is necessary in order to cope with the looming consequences of climate change. (Pumphrey, 2008, 112)
XII. The Moral Case for a Loss and Damage Mechanism under International Law
Although some moral claims are controversial, a claim that nations who cause harm and suffering to places and people living beyond their boarders have a moral duty to compensate those that they have been harmed without their consent is consistent with the golden rule, a moral obligation acknowledged by almost all the world religions. This rule says that people cant harm others because of benefits to them. Furthermore, almost all nations agreed that they had a moral duty to compensate for damages if they harmed others when they adopted the 1992 Rio Declaration which provides:
National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment. (Rio Declaration, 1992. Principle 16)
The creation o f a Loss and Damage mechanism will raise both tricky procedural and distributive justice issues.
Already some opposed to the mechanism are warning of the mischief that developing countries may do if the fund is created. For instance, opponents of the mechanism are claiming developing countries may seek compensation for comparatively trivial harms. All of these concerns can be minimized through negotiation of the rules.
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