By Isabella Kaminski
MADRID—As the latest series of international climate talks begin in Madrid, the discussions will have to broach issues of climate justice, experts say, including whether governments could be held liable for historic inaction on climate change.
Speaking at the formal opening of the United Nations’ negotiations (COP25), UN Secretary-General António Guterres said global efforts to combat climate change had so far been “utterly inadequate” and warned that delegates had important decisions to make.
“By the end of the coming decade we will be on one of two paths, one of which is sleepwalking past the point of no return,” he said.
One major agenda item revolves around climate-related loss and damage in vulnerable countries, several of which are considering legal action to pay for damage that is already occurring and is expected to get much worse.
Loss and damage was addressed in Article 8 of the 2015 Paris Agreement under the Warsaw International Mechanism (WIM). It recognises the importance of “averting, minimising and addressing loss and damage associated with climate change, including extreme weather events, such as floods, landslides, storms and forest fires, and slow onset events such as the loss of fresh water aquifers and glaciers.” But a financing mechanism for doing this has yet to be agreed.
Developing countries are starting to present a united front to push for loss and damage finance, said Leia Achampong, EU climate change advisor for ACT Alliance, a coalition of Protestant and Orthodox church organisations.
She also expects international organizations—specifically UN agencies—to raise issues of human rights and gender in relation to this funding. “I think it’s important because loss and damage affects different people and different marginalised communities in different ways and yet the WIM isn’t responding to those differing circumstances,” Achampong said. “The WIM addresses loss and damage in the context of different country circumstances but it doesn’t yet take into equity within countries.”
The Paris Agreement’s clauses on loss and damage were hard-won, following major disputes between developed and developing nations. Richer countries were particularly concerned that any mention of historic liability would open the floodgates for compensation claims.
In the end, the agreement’s final text explicitly stated that Article 8 “does not involve or provide a basis for any liability or compensation.” As a result, negotiations on loss and damage have to be very carefully worded.
While it is very unlikely that historic liability will be reintroduced, Achampong noted that the WIM executive committee has two new board members from negotiating groups representing Africa and the the least developed countries. They are “being very vocal about raising all of the uncomfortable questions that developed countries don’t want to discuss, including on a finance facility for the WIM,” she said.
Sébastien Duyck, senior attorney at the Center for International Environmental Law (CIEL), said a successful loss and damage mechanism could in fact decrease the risk of litigation. “It is very difficult relying on traditional legal approaches and trying to hold politicians liable for climate damage,” he said. “But also it is extremely frustrating, it is time consuming, it involves a lot of resources.”
Progress on this topic is in everyone’s interest, he said, so that vulnerable countries do not have to resort to other parts of the UN or courts to get some form of compensation, “at least when it comes to state-to-state relations.”
If the most polluting countries really step up to the commitments they made in Paris and show progress on their national determined contributions (NDCs), Duyck said, they would be in a strong position to fight litigation.
NDCs must be submitted every five years, with the next round of new and revised commitments expected next year.
Another key item on the COP25 agenda is the development of ‘Article 6’ rules that will govern carbon markets and other forms of international cooperation. It is the last part of the Paris Agreement rulebook still to be resolved.
“The judge asked several times to the representative of the government: ‘Do they know that there are enough certificates to buy for Germany to comply with their annual target?’ And they couldn’t answer that, they just said they’re optimistic. Unfortunately the court didn’t follow up further on that.”
She said this raises the question of whether there is a minimum level of climate protection that countries have to provide for their citizens and the degree to which they have to fulfill this at home instead of buying overseas credits. “And is that something that we can also fight for in the courts?”
The country facing the widest range of litigation over climate issues, the U.S., is represented here not by President Donald Trump, who began the process to formally exit the Paris Agreement in November, but by a Congressional delegation of Democrats led by House Speaker Nancy Pelosi. Late on Monday, she told the conference that “Congress’s commitment to action on the climate crisis is iron-clad. This is a matter of public health, of clean air, of clean water, of our children, of the survival of our economies, of the prosperity of the world, of national security, justice and equality.”
The two-week talks had been scheduled to be held in Chile, but widespread civil unrest forced the country to back out last month and Madrid stepped in to host. The talks will retain a strong Latin America flavour with side events examining the human rights implications of climate change, climate justice, gender and the participation of indigenous communities.