Loss and Damage Claims in Climate Justice

By Sujatha Byravan and Sudhir Chella Rajan

From The Hindu, December 2, 2013

Compensation or reparation for damages associated with any country’s contribution to historical emissions amounts to a ‘duty to make amends’ and is not an act of charity

India joined nearly 140 countries in staging a walkout during the recent climate negotiations in Warsaw to oppose the attempt to avoid creating a strong institutional mechanism to address “loss and damage.” In the final moments of the conference, however, some form of compromise was found on loss and damage as well as a future course of action to “initiate or intensify domestic preparations for their intended nationally determined contributions” to reduce greenhouse gas emissions. Notwithstanding India’s overt solidarity with other developing countries, its lack of engagement in discussions on loss and damage indicates that it does not have a clear understanding of the broader ethical and political implications of the concept, nor how it could be important strategically.

Impact of extreme weather

The term “loss and damage” was introduced into international climate negotiations by small island nations and least developed countries in Cancun in 2010, and is now formally a part of the language of the United Nations Framework Convention on Climate Change. As a legal concept, it conveys the historical liability for climate change that is largely borne by the rich countries of the world. During the past century-and-a-half or so, carbon has been mined in enormous quantities from the depths of the earth and burned in engines generating vast amounts of goods and services while releasing about two trillion tonnes of carbon dioxide, much of which remains in the atmosphere today. Developed regions such as the United States, Europe and Japan are responsible for more than two-thirds of the stock of carbon dioxide, with the remaining portion due to India, China and the rest of the developing world.

Climate change is expected to cause severe droughts in some parts of the world and flooding in others, and coastal erosion and an increased frequency of extreme weather events such as cyclones, tornadoes, storm surges and heatwaves. One of the sad ironies, however, is that the countries that have emitted the least amount of greenhouse gases will suffer the worst impacts due to warming. People living on small islands, delta regions, those who will suffer droughts and floods and extreme events, are, for the most part, from poor countries, and the poorest from among them will be the worst affected. Bangladesh, which has been a minuscule contributor of greenhouse gases, will have most of its people at risk due to climate change.

Compensation

“Loss and damage” entails claims by the developing world from rich countries to provide compensation for the “losses and irreversible damage, including non-economic losses” (taken from G77 and China’s submission to COP 19 on loss and damage) associated with climate change. The idea is taken directly from tort law, which is probably why North America, Europe and Australia have been virulently opposed to having a separate track discuss the issue. Part of the problem is that the notion of loss and damage might also include non-monetary forms of compensation, whose character might sometimes be unclear. For instance, if small island nations like the Maldives and Kiribati were to become submerged as a result of sea level rise from climate change, the resulting disappearance of these nation states would require unusual measures of recompense, including mass migration to other countries and citizenship rights for the migrants, rather than just money.

In cases of civil negligence, in the U.S., but also elsewhere, courts have long established that where a proximate cause to a loss can be established, whether the action was intentional or not, the perpetrator will bear the liability and will have to pay for damages. This means that if enshrined in international law, the countries most responsible for historically caused losses associated with climate change will have to provide the most compensation for various identified damages that will mostly be in developing countries.

For India

India has long recognised the importance of equity in the climate dialogue, by stressing Article 3.1 of the Convention, which speaks of “common but differentiated responsibilities and respective capabilities.” India’s stance has been that every person should have equal access to development, implying an equal share of the earth’s carbon budget. That is to say, if carbon dioxide emissions were to be reduced globally, the rich should be the first and fastest to do so and the poor, the last. India has used its low per capita emissions to push the point that its engagement in emissions reductions efforts should be deferred until after countries with higher per capita emissions reduce theirs. Since the global climate negotiations in Durban, however, the centrality of this position has been shaken, in part because of a new understanding of the urgency and severity of global emissions reductions needed to avert climate catastrophe and also because of shifts in political positions.

Loss and damage belongs to the same overall framework of climate justice. For one thing, India will be one of the most severely affected countries by climate change, given its sheer size, climatic geography and the impacts associated with Himalayan glacier melt, droughts in various regions, coastal vulnerability from sea level rise, reductions in agricultural production, livelihood loss for the poor, increased severity of cyclones, and potential threats to the entire monsoon system. For another, compensation or reparation for damages associated with any country’s contribution to historical emissions amounts to a “duty to make amends” rather than an act of charity.

Paying attention to “loss and damage” from historical emissions maintains equity with regard to the current “stock” of the carbon space that has been unequally distributed among countries. With regard to “flows” or annual emissions of greenhouse gas emissions, India may want to join with other countries to develop a separate equity-based agreement that is consistent with its own understanding of climate justice. India itself may not be in a position to claim damages, depending on how its own responsibilities and capabilities are accounted for, but it is nevertheless in its clearest interest to understand the issue better and join forces with other developing countries.

(Sujatha Byravan and Sudhir Chella Rajan are based in Chennai and work on climate change policy.)

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