Torrential monsoon rains have triggered Pakistan’s worst floods this century. So far, at least 1,300 people have been killed and a third of the country is under flood waters. Entire villages have been washed away and an estimated three million children are in need of humanitarian assistance. The country’s food supply is at severe risk as large swathes of agricultural lands have been flooded and crops have been destroyed. This disaster is unfolding just weeks after the country suffered an intensive heatwave and serious drought. These disasters are widely blamed on climate change. Scientists believe the heatwaves and floods are inter-related, with the extreme temperatures triggering abnormal levels of rain. Against this backdrop, Pakistan’s minister for climate change has called for rich nations to pay reparations to developing States suffering climate loss and damage.
In this blog post, I will put the claims for climate reparations in an international law context. First, I will describe how climate reparations have been addressed at the international climate negotiations, and provide some commentary on how the issue may be advanced at the forthcoming negotiations scheduled to take place in Sharm El-Sheikh, Egypt, in November. Second, I will discuss recent initiatives to bring climate change before international courts and tribunals. Finally, I will summarise the main legal principles that are relevant to determining whether States have a legal obligation to provide financial assistance for loss and damage caused by climate change.
How reparations are being addressed in international climate negotiations
While international efforts to combat climate change have gained momentum in recent years, progress has been slow in developing the mechanisms through which victims of climate change can be compensated. This is particularly pertinent for developing States such as Pakistan which are already facing significant hardship as a result of climate change but lack the resources to cope with it. “Global warming is the existential crisis facing the world and Pakistan is ground zero – yet we have contributed less than 1% to [greenhouse gas] emissions. We all know that the pledges made in multilateral forums have not been fulfilled,” said Pakistani climate change minister Sherry Rehman in an interview last week. She argued that rich States should bear the financial cost of addressing loss and damage suffered in climate vulnerable States such as Pakistan. “There is so much loss and damage with so little reparations to countries that contributed so little to the world’s carbon footprint that obviously the bargain made between the global north and global south is not working.” Rehman’s statements add to the growing pressure on States that have contributed the most to atmospheric greenhouse gas emissions to provide financial support for the victims of climate change in the Global South.
The concept of climate reparations was first proposed in the context of global climate negotiations when the text of what is now the United Nations Framework Convention on Climate Change (UNFCCC) was being discussed. On behalf of the Alliance of Small Island States, Vanuatu proposed the establishment of an international fund and insurance pool based on the polluter pays principle. This proposal explained how “[t]he resources of the insurance pool should be used to compensate the most vulnerable small island and low-lying coastal developing countries for loss and damage resulting from sea level rise.” The proposal was rejected at the time, but has since been revisited at numerous international meetings on climate change. A breakthrough occurred in 2013 at the 19th Conference of the Parties (COP) in Warsaw, Poland, when Parties to the UNFCCC agreed to establish the Warsaw International Mechanism for Loss and Damage (WIM) to address loss and damage suffered by developing States as a result of climate change. In the context of the evolving normative framework under the UNFCCC, loss and damage can be understood as covering those measures that address the impacts of climate change which are “residual” to mitigation and adaptation. The WIM established at COP19 has as its three core functions: (i) enhancing understanding of risk management approaches, (ii) strengthening dialogue, coordination, coherence and synergies between stakeholders, and (iii) enhancing action and support to address loss and damage. In 2015, the WIM was anchored in the Paris Agreement through Article 8 of this treaty, thus providing the mechanism with a permanent legal basis. However, the COP decision accompanying the Agreement stipulated that Article 8 “does not involve or provide any basis for liability or compensation.”
Finance for loss and damage has remained a contentious issue. Despite developing States’ efforts (backed by global civil society) to ensure that the WIM would deliver on action and support to address already occurring loss and damage, the mechanism has focused most of its work on enhancing understanding and strengthening coordination. A review of the WIM at COP25 in 2019 led to the establishment of the Santiago Network on averting, minimising and addressing loss and damage (SNLD), which is tasked with catalysing technical assistance of relevant organisations, bodies, networks and experts for the implementation of relevant approaches at all levels in vulnerable developing countries. The ambiguous formulation of the SNLD’s mandate meant that it could either be little more than a website, as developed States appeared to have envisaged, or could support developing States in implementing loss and damage actions. This ambiguity has been somewhat reduced at COP26 in Glasgow last year, though complexities remain: Parties agreed on some of the basic functions of the SNLD, and a process was agreed for developing its institutional arrangements, modalities and structures in 2022. Further, on the last day of the meeting, Germany pledged €10 million to support the operation of the Network (along with other resources), and Canada also pledged to contribute. Yet the focus of the SNLD remains on technical assistance, thus leaving the need for financial support still unaddressed.
Seeing the continuous finance gap, developing States called for the establishment of a separate “Glasgow Loss and Damage Facility” capable of mobilising and channeling finance for loss and damage. Strong pushback from developed States meant that instead of a Facility, the “Glasgow Dialogue” was established as a process to discuss the arrangements for funding to avert, minimise and address loss and damage. This Dialogue is scheduled to conclude in June 2024, without any guarantee of a meaningful outcome. However, a glimpse of hope was provided by Scotland’s groundbreaking commitment of £2 million for loss and damage, with First Minister Nicola Sturgeon stating that providing such finance “is not charity, it is our obligation”. She added that “if Scotland can up its contribution, there is no good reason why the larger, developed countries … cannot do so too”. Whether other developed States indeed follow suit will be a key factor in the success or failure of the upcoming November 2022 climate talks in Sharm el-Sheikh.
Potential contributions of international courts and tribunals
The snail-pace progress in loss and damage financing has spurred discussion about the role of international courts and tribunals in unlocking reparations for climate harm. At the start of COP26, Antigua and Barbuda and Tuvalu signed an agreement establishing a new Commission of Small Island States on Climate Change and International Law (known as COSIS) with the express power to request an advisory opinion from the International Tribunal for the Law of the Sea (ITLOS) on issues within the ITLOS’ jurisdiction relating to international law and climate change. In parallel, Vanuatu is building a coalition to secure the adoption of a UN General Assembly resolution that will request an advisory opinion from the International Court of Justice (ICJ) on climate change and human rights. These initiatives have the potential to provide increased clarity about the legal consequences of climate change, and suggest that litigation may play an important role in resolving the world’s struggle with the loss and damage question.
Indeed, it is worth highlighting that climate reparations can be (and have been) argued to fall within the legal responsibility of States that have contributed most to climate change. This responsibility arises from States’ respective obligations under customary international law (including the obligation of due diligence and the principle of prevention of significant harm to the environment) and under relevant treaties (such as the UNFCCC and the Paris Agreement, the Convention on Biological Diversity, the United Nations Convention on the Law of the Sea, and international human rights treaties). It is well-established under general international law that a breach of these obligations results in ‘secondary’ obligations to make full reparations for any injury resulting from the breach. International courts and tribunals could (and arguably should) now be relied upon to make determinations concerning the scope of these secondary obligations and the means of their fulfilment. For example, an advisory opinion from ITLOS could provide greater clarity regarding the legal obligations of States in respect climate change-related loss and damage to the marine environment. An advisory opinion from the ICJ could be used to clarify the scope of the obligations arising from various sources of international law regarding climate change and human rights (such as the duty to prevent and minimise loss and damage). An opinion from the ICJ would presumably have broader international legal implications, and could influence national legislation and/or policies relating to climate change mitigation, adaptation as well as loss and damage.
To conclude, preventing and addressing climate harm is one of the most important challenges of our time. Legal frameworks for addressing climate change-related loss and damage are at an early stage of development. As Maxine Burkett has argued, “[i]n the absence of a substantial commitment to remedy the harm faced by the climate vulnerable, reparations for damage caused by climate change can provide a comprehensive key organising principle for claims against those most responsible while placing key ethics and justice concerns–concerns that have been heretofore woefully under-emphasised–at the centre of the climate debate”. Pakistani Minister Rehman’s remarks underscore how the call for reparations (and for corrective justice) will only grow as long as international climate negotiations do not deliver a meaningful outcome on loss and damage. It is hoped that States which have thus far blocked such an outcome, and which owe much of their economic development to fossil fuel-emitting activities, will come forward with concrete commitments to tackle the loss and damage problem at the upcoming COP in Sharm El Sheikh.