05.11.22 |
Karen C. Sokol is a professor of law at Loyola University New Orleans College of Law and Fellow in Law, Ethics, & Public Policy at the Princeton School of Public and International Affairs. She serves as a Member Scholar at the Center for Progressive Reform.
Throughout the summer and early fall, U.N. Secretary-General António Guterres repeatedly urged wealthy, high-emitting nations to provide Pakistan — which is responsible for less than 1 percent of carbon emissions — with the funds necessary to respond to and repair the “climate carnage” wrought by months of record and monsoon rains layered on top of accelerated glacial melt that submerged one-third of the country. Deaths exceeded 1,700, 2.1 million people lost their homes, and infectious diseases spread “at alarming speed,” unleashing what the World Health Organization deemed a “second disaster.” Moreover, Pakistanis were assaulted by the apocalyptic deluge while they were still reeling from a deadly spring heatwave in which temperatures rose as high as 50°C (122°F).
As Sherry Rehman, Pakistan’s climate change minister, told The Guardian in September: “Global warming is the existential crisis facing the world and Pakistan is ground zero. 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 is right, and, as with climate breakdown itself, the United States bears primary responsibility for the breach.
The “Loss and Damage” Bargain — and the Ongoing, Devastating Breach
Global South countries, on the frontlines of climate disruption, began advocating for the codification of obligations to pay climate “loss and damage” and the establishment of a legal mechanism for implementing them even before the United Nations Framework Convention on Climate Change (UNFCCC) was adopted.
Vanuatu, a state comprising 82 islands that, like Pakistan, is one of the most climate-precarious countries in the world, submitted a proposal for such a mechanism in negotiations on the UNFCCC in 1991. The proposal was rejected by the United States and other high-emitting wealthy nations, whom the proposal holds responsible for paying into the fund amounts based on their gross national product and carbon emissions. As the proposal pointed out, such a design is important to the efficacy of international climate law: “The scheme would . . . offer incentives to the industrialized developed countries to limit their CO2 emissions so as to mitigate the rate and extent of global warming and consequent sea level rise.”
In other words, the proposal would have implemented “the polluter pays” principle — a long-standing norm of international law that enforces “the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or areas beyond their national control.” Over the course of decades of negotiations under the UNFCCC, Global South countries continued to advance the rule of law, as well as justice, by pressing wealthy nations to recognize their obligations to pay climate “loss and damage” and to establish an international funding mechanism within the UNFCCC to implement them.
Finally, after significant concessions, Global South nations, led by the Alliance of Small Island States, secured in 2015 what they believed was a guarantee that wealthy nations would meet their obligations. That year, states adopted the Paris Agreement, which includes an express recognition of loss and damage in Article 8: “Parties recognize the importance of averting, minimizing and addressing loss and damage associated with the adverse effects of climate change, including extreme weather events and slow onset events, and the role of sustainable development in reducing the risk of loss and damage.”
This language was the result of a compromise. An alliance of the United States and some other Global North countries insisted on keeping the nature of the obligation obscure by opposing any reference to “liability or compensation,” language that Global South countries had advanced and that is consistent with the “polluter pays” principle embodied in Vanuatu’s initial proposal. Further, the United States insisted that Article 8’s recognition of “loss and damage” be qualified with the following text, which is included in the parties’ decision adopting the Paris Agreement: “Article 8 of the Agreement does not involve or provide a basis for any liability or compensation.”
Global South nations accepted the compromise on the assumption that the United States and other wealthy nations were negotiating in good faith. That assumption has since proved wrong. Instead of moving forward to get much-needed “loss and damage” funding flowing to climate-battered countries, the United States has consistently undermined the establishment of a funding mechanism in negotiations on the ground that it will not accept imposition of “liability” or “compensation.” It maintained this stance at the 2021 Paris negotiations in Glasgow — even though President Joe Biden had promised to reengage with the international community on climate upon rejoining the Paris Agreement after former President Donald Trump’s withdrawal.
Aligning U.S. Foreign and National Security Policy with Climate Security
Rejoining the Paris Agreement was among the first initiatives the Biden administration took to implement the directive in one of his first executive orders to “place the climate crisis at the forefront of this Nation’s foreign policy and national security planning.” But perceiving the specter of “liability” as a threat to be averted is both a foreign policy and an intelligence failure in light of the facts of climate science coupled with the gross mismatch between the concentration of responsibility in the Global North and of climate devastation in the Global South.
In an article on Lawfare, Professor Mark Nevitt rightly called attention to the need to prioritize loss and damage in international climate law and policy. It is, he said, one of the “three legs of the climate stool” — along with mitigation and adaptation. A more apt analogy, I suggest, is that repair of loss and damage is the foundation of global solidarity necessary for building solid mitigation and adaptation structures. The climate catastrophe that continues to unfold in Pakistan brings that into painfully sharp relief.
While the flooding was ongoing at the end of September, Pakistani Prime Minister Shehbaz Sharif addressed the U.N. General Assembly as the current chair of the G-77, the largest intergovernmental organization of developing countries that represents over 80 percent of the world’s population.
“Why are my people paying the price of such high global warming through no fault of their own?”, Sharif asked. “It is . . . entirely reasonable to expect some approximation of justice for this loss and damage.”
Biden, as leader of the nation that has emitted the most greenhouse gases and thus bears the most responsibility for climate loss and damage, should swiftly heed this call and make climate security a true foreign and national security policy priority.
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