Are Human Rights Lost and Damaged?

Haiti after Hurricane Matthew

Haiti after Hurricane Matthew

Loss and Damage (L&D) includes the permanent loss of land, culture, and human life and will escalate existing tensions over increasingly scarce resources. This tension will ultimately incite conflict in many parts of the world. In some places, the loss of habitable land is forcing individuals and families to leave their country, threatening their sovereignty, and some countries are entirely submerged as a result of increasing sea levels. Since human rights include the right to life and the right to health, some have wondered why these aspects of climate change are not considered a violation of human rights.

One reason could stem from traditional human rights violations. Typically, human rights violations must be obviously traceable to an entity. An article in the Bangladesh Chronicle observes that extreme weather events cannot violate human rights through volcanic eruptions, mudslides, or events outside human control. As L&D is defined as the impacts of climate change that people are unable to adapt to, there might be an argument that the consequences are outside human control. Certainly, this is the case for L&D up to a point.

However, the risk of L&D is exacerbated through current inaction. By countries not adopting aggressive mitigation targets, they are not only increasing the already widespread need for adaptation, but they are worsening the situation by exponentially raising the risk posed by more frequent extreme weather events and more extensive slow onset events.  Therefore, there is a direct connection between lackadaisical mitigation reductions and increased risk of L&D. This trend, when coupled with scientific advances that can determine the impact of a specific country’s emission contributions on another’s climate, could provide vulnerable countries with an avenue to seek compensation through the international courts of justice, or some other court with requisite jurisdiction.

Still, in order to bring a claim, the claim must be valid. This is where one of the major criticisms of the Paris Agreement might work toward concerned parties’ advantage. Throughout the negotiation of the Paris Agreement, mentioning human rights in the substantive body of the text remained contentious. Ultimately, the concept was relegated to the preamble and isolated from any significant application to the implementation of the Paris Agreement requirements. Also, under decision 1/CP.21 para 51, the Parties agreed that Article 8 of the Paris Agreement dealing with L&D does not provide a basis for liability or compensation. Theoretically, since human rights are not mentioned in Article 8, a human rights violation resulting from widespread indifference to climate action leading to increased L&D might provide relevant parties with enough of a legal basis to establish liability. The Paris Agreement does not explicitly exempt human rights violation claims founded on L&D. The Paris Agreement and following decisions only prevent L&D grievances rooted within the operative text of Article 8. The specific language states that L&D does not “provide a basis for compensation or liability,” but does not preclude liability founded in human rights. Therefore the Paris Agreement only prevents parties from declaring entitlement to compensation from developed countries based on the mere fact that L&D will occur. It does not preclude liability imposed through claims not covered in the Paris Agreement like human rights violations.

Albeit seemingly outlandish, challenging the unambitious mitigation offers from developed countries with human rights violation claims might prove to be a form of viable motivation so as to adequately protect the most vulnerable countries to climate change. In this narrow window of opportunity, the international community should not wait to mitigate. When that window closes, they can only hope for the best and provide compensation.

Developing Innovation

Cyclone Aftermath

Cyclone Nargis Aftermath

With the increasing risks of loss and damage (L&D) associated with the impacts of climate change, all nations are facing unprecedented complications in providing for the protection of their citizens. This burden of meeting this challenge is especially felt by those countries with less access to the variety of resources necessary to adequately innovate unilaterally. These developing countries lack the finances, information, and collaboration to successfully adapt and therefore reduce the amount of loss and damage suffered by their citizens. In the face of various types of weather and climate events, developing nations have to entertain multi-faceted approaches. While some have similar themes, they often differ in some key areas.

At an official COP22 side event, government ministers, private sector representatives, and other interest parties gathered to discuss these approaches. The first to speak was Dr. Abid Qaiyum Suleri, executive director of SDPR in Pakistan. He set the mood by describing their inadequate responses to climate change. Pakistan, and now other nations as well, experience a cycle of intense floods and droughts that have been exacerbated by climate change. Local communities are not provided with enough resources to adapt to one extreme by the time the other has set it. This instability is intolerable, and compounds the already devastating impacts. Dr. Suleri stated that because of the unstable climate, Pakistan is experiencing a brain drain which further reduces their capacity to innovate. The other represented countries’ perspectives prove that Pakistan’s is far from unique, but the remedy is far from clear.

The dialogue centered around disagreements on innovation. The representative from Kenya, Kennedy Mbeva believes the risk posed through L&D requires a three-pronged innovation paradigm shift: technology innovation, policy innovation, and institutional innovation. As for the first, Mr. Mbeva focused on lack of access to technology and the redundancy in inventing existing renewable energy sources. Also, Kenya does not have the access to the financial and human capital necessary to promote such invention in the first place. The international community needs to create a platform for sharing as these innovations usually come from outside developing countries. As for policy innovation, Mr. Mbeva recognized the hostile environment many developing nations pose to outside investment. Tying this in with the third prong, he suggested reducing the risk to private and public institutions through proactive government policy founded in corroborated evidence. This evidence would provide investors security in their returns, and would hopefully encourage outside contributions through the private sector and public funds.

The Director General of TERI in India, Dr. Ajay Mathur simply focused on the expense incurred at the individual level by being a climate-progressive consumer. He stressed the need to create companies that can appreciate the long-term returns on renewable and sustainable innovations, like LED lightbulbs, that the average consumer would immediately write off as beyond extravagant. Through economies of scale, those businesses can receive short-term benefits that will only increase in the long-run. Once solutions are affordable and make economic sense to the private sector, then adaptation and L&D risk reduction follow. However, this approach does not incorporate the blatant urgency reflected in the expedited ratification of the Paris Agreement.

Dr. Edward Cameron

Dr. Edward Cameron, Managing Director of BSR

As the sole representative from a developed country, Dr. Edward Cameron of the U.S., Managing Director of BSR, closed the meeting with some concerns, recognizing that issues of innovation — those mentioned above as well as cultural innovation — do not incorporate the complexity of international investment. The expedited ratification sent a message to investors emphasizing the importance of climate resiliency. Still, direct investment will only occur if the private sector is confident in the countries rule of law and its ability to provide a favorable return on investment. As for public funds like the Green Climate Fund (GCF), not only is the capital dwarfed by the resilient climate market, but it does not address accessibility of finance to vulnerable minority communities, or those without access to information on finance and resource availability. Developing nations need to provide some sense of reliability for returns and equal distribution so the funds are not wasted in this crucial window of opportunity.



Approving Decisions on a WIM

After many late night negotiations the Subsidiary Bodies (SBs), the Subsidiary Body for Implementation (SBI) and the Subsidiary Body for Science and Technological Advice (SBSTA), came to a surprising agreement on both issues related to the Warsaw International Mechanism (WIM) for Loss and Damage associated with Climate Change Impacts in their 45th sessions. The main agenda items related to Loss and Damage (L&D) for SBI45 and SBSTA45 were item 11 and 5 respectively, but since these items were originally to be considered by a joint session of the SBs, they resulted in the same draft conclusions proposed by the Chair of the SBI, Tomasz Chruszczow, and the Chair of the SBSTA, Carlos Fuller.

Chair of the SBSTA, Carlos Fuller

Chair of the SBSTA, Carlos Fuller

The first issue established the indicative framework for the WIM’s five-year rolling workplan to include a strategic work stream to guide the WIM in enhancing action and support through finance, technology, and capacity building. This step is crucial to understand L&D and provide the COP with a range of strategic activities as it goes beyond the initial 20-year workplan. This decision also extends an input invitation to, not just parties, but also “relevant organizations.” However, this decision alone falls short of the SB’s directive. In decision 2/CP.19, the COP called for a review of the WIM at COP22. This aspect incited contentious debate among the parties. Delegations disagreed as to the terms of reference to be used during the WIM review. Through the dedicated leadership of the co-facilitators, Alf Willis from South Africa and Beth Lavender of Canada, the parties eventually reached a decision on the draft conclusion to be recommended to COP22. If the COP accepts the draft, the WIM will be periodically reviewed no more than five years apart with the next review to be in 2019. The terms of reference for each review will be determined no later than six months before the review.

Proving Loss and Damage


Myanmar After Cyclone Komen

Myanmar After Cyclone Komen.

During an official COP22 side event entitled “Quantitative Scientific Evidence for Loss and Damage,” researchers from the Center for International Climate and Energy Research – Oslo  (CICERO) and University of Oxford, among others, presented deductive methodologies capable of apportioning country-specific anthropogenic contributions “responsible” for other nation’s loss and damage (while science can track contributions between climate change indicators and increases in extreme weather events, there is no link between contribution and responsibility). Theoretically, science can now determine how the emissions of the EU increased the likelihood of heat waves in Argentina. Since this is only a contribution analysis, it cannot prove liability.

This type of modeling is a recent development. Dr. Otto from the University of Oxford, and Dr. Fuglestvedt of CICERO are two of the pioneers. Dr. Otto recognized the lack of purely anthropogenic climate change impacts on humans in the latest report of the International Panel on Climate Change (IPCC), and filled the gap by discovering the true impact of anthropogenic climate change without nature’s cyclical contributions through multiple simulations. However, since climate change science is such an involved discipline, the limitations quickly revealed themselves. Dr. Fuglestvedt, while recognizing the importance of this new method, is cognizant of the political and ethical dilemmas.

These studies are defined by their parameters. Depending on the chosen start date for emissions data, or the included climate change indicators, or which part of the supply chain the researchers focus on, the national contribution attributed to another’s loss and damage is highly variable. From a basic CO2 emissions study to an all-factor inclusive study, the contribution of Annex I countries changes from 68% to 46%. To maintain objectivity in these studies, the researchers simply recommend that all reports include the entire spectrum of results, providing policy makers with the necessary data to implement appropriate action.

Sustainable Standard of Living?

wind-turbines17On October 9th, during the second U.S. Presidential Debate, the environmental community found an unlikely hero. Kenneth Bone rose in the final minutes of audience questions and asked both candidates, “What steps will your energy policy take to meet our energy needs, while at the same time remaining environmentally friendly and minimizing job loss for fossil power plant workers?” This pointed inquiry brought the environmental crisis back to the forefront of the debate, nudging both candidates to lay out their plans for combating the imminent energy crisis caused from finite fossil fuels. After that moment passed, there was something inherent in Mr. Bone’s question that stuck. His question implied a noteworthy limitation. US energy needs must be met. What is so astounding is that despite Mr. Bone’s well intentioned question, he assumes that the United States will be able to simultaneously achieve energy resilience and go about business as usual. This spurred an investigation into the compatibility of clean energy with US standards of living.

The current US standard of living is the highest yet in history with people living longer than any generation before. The US fuels this standard with an intense use of available resources. With less than 5% of the world’s population, the US consumes a third of the world’s paper, a quarter of the world’s oil, and 23 % of its coal. The US uses over 19 tons of carbon per capita compared to the global average of only five tons. US standards are dependent on a crucial factor: resource availability. In an age where scarcity is increasingly worrisome, a crossroads appears. Researchers have developed many solutions to address this issue. Some are incredibly provocative as they require radical change on an individual level. Others utilize technology either conservatively, or radically to impact global warming.

In one of the more radical behavioral positions, Chris Clugston lays out his perspective. He argues that the mismanagement of America’s resources combined with increasing financial insecurity from the global market has culminated in an irrefutable observation: habits have to change. It can no longer popular to remain complacent in the relative opulence American citizens enjoy. The means to achieve a sustainable and resilient energy sector have evolved from merely weaning the masses from fossil fuels to solar panels and windmills, to necessitating behavioral adaptation. The grim picture he portrays in that article sets the stage for a dismal future, plagued by the unpreparedness of the populous to acknowledge the true implications of scarcity if people are hesitant to act.

However, there are other perspectives. Some believe that with the dual advances in conservation and efficiency, scientists will not only be able to match the current standard of living Americans have grown accustomed to, but they will actual produce more energy than we use. The Energy Justice Center finds that solar alone, when implemented efficiently, can provide 55 times US current energy use, and wind can provide 6 times US current usage. Effective use of these existing technologies can maintain the US standard of living while transitioning the energy sector to more resilient sources.

Others believe that the threat posed by climate change is not insurmountable. Harvard physicist David Keith believes that science can, while not completely curing, mitigate the symptoms of global warming. If technological advancements can relieve the symptoms of global warming, then the inspiration to act to discover new fuels and generally reform energy use would disappear.

Ultimately, maintaining the current standard of living in a renewable world remains a debatable possibility. However, there is no harm that can come from introducing frugality from the individual level into American energy consumption. If everyone works to reduce their needs, then sustainable energy goals become that much more tangible.