Climate negotiations are a strange beast; lurking within what seem to be pages of dry, impenetrable text are proposals that could change the world. One of these is a proposal for compensation and redress for “loss and damage”- harm caused by climate change that is now so severe that it can’t be adapted to. This harm is becoming an everyday reality for developing countries, even though they are not responsible for the emissions causing it.
"Not only should developed countries make serious efforts to reduce their emissions, they should be offering redress and compensation for the harm caused."
Typhoons and other disasters with immediate high impact hit the headlines, but slow, incipient, creeping change can be just as harmful. The UN’s climate panel, the IPCC, tells us that future temperature increases will impact tropical developing countries with large populations and limited capacity to adapt in particular.
The ironies of climate change are harsh: at the same time as jeopardising the existence of small island states through sea level rise, a two degree temperature increase will reduce water sources in dry subtropical regions. People in developing countries also face reduced food production and increased disease (such as increase in malaria) as a result of climate change. The UN Special Rapporteur on Human Rights & the Environment has identified South Asia and Southern Africa as two regions most at risk from climate change without adaptation.
Of course, it is not only developing countries that face harm from climate change. Here in the UK we have experienced the scourge of flooding. But the data makes clear that the climate harm developing countries face comes predominantly the emissions of developed countries. And the scale is simply enormous - in a survey of 84 developing countries modelled, 52 million people and 32 000 square kilometres of land are expected to be impacted by floods by 2100.
This is harrowingly unfair. And although notions of fairness send developed countries diving for cover in the political discussions on climate change, they are, fortunately, embedded into international environmental law. It is a fundamental legal principle, confirmed by the International Court of Justice, that states should not cause harm outside their jurisdiction and should respect the environment of other states and areas beyond their frontiers.
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The UN climate change convention requires developed countries to take the lead in reducing their greenhouse emissions to a level that prevents dangerous climate change. Their failure to do this, to the extent that developing countries now face climate consequences that can’t be adapted to, creates legal consequences. Not only should developed countries make serious efforts to reduce their emissions, they should be offering redress and compensation for the harm caused.
In Warsaw in 2013, under the sombre shadow of the thousands of deaths caused by super Typhoon Haiyan, we saw an important step forward: setting up the Warsaw international mechanism on loss and damage. Two years on, we are fighting to make sure this mechanism is rooted into the Paris agreement and that the countries and communities affected by loss and damage get the support they need.
One way of doing this would be for developed countries to make payments into a loss and damage compensation fund. But of course money cannot compensate for everything and there should be creative solutions for recognising the harm caused to communities through the loss of their livelihoods, homelands and cultural heritage for instance - including through formal declarations acknowledging this loss. The loss and damage mechanism is also ideally placed to consider how to take this work forward. It can also help coordinate the work of other UN bodies and develop a legal regime to fill the gaping holes in protection for those displaced or forced to migrate as a result of climate change.
The language on compensation will come under the most intense pressure possible on the road to Paris as developed countries seek to evade any suggestion of responsibility for death and disaster in the developing world. But the question of redress will not go away; it is being discussed not only in the corridors of the climate negotiations but in courts and communities across the world. It is time to recognise that the Paris agreement should form part of the answer.