❝Why loss & damage fund alone will not redress climate harm

As climate change-fuelled floods, droughts, forest fires, and sea level rise cause havoc across the globe, those least responsible and most marginalised are paying for the damage with their lives and livelihoods. 

They are entitled to effective remedy and reparations, but so far the UN climate regime has delivered neither. A proposed loss and damage fund to be adopted at the Cop28 climate summit risks falling short as well.

Redressing mounting climate harms at scale requires bold, urgent action at the UN climate diplomacy level but also beyond.  

In the last two decades, climate change has wiped out one fifth of the wealth of the world’s most vulnerable economies, causing damage to homes, hospitals, schools and infrastructure, as well as incalculable losses of life, health and cultural losses.

The failure of states, especially wealthy nations, to take adequate action to prevent such harms by reducing emissions, to minimise them by supporting adaptation to climate change, and to remedy them by providing redress violates their legal duties under human rights law – obligations that were established decades ago.

Over the three decades since the adoption of the UN Framework Convention on Climate Change (UNFCCC) – the parent convention to the 2015 Paris agreement  – the largest cumulative emitters have sought to evade and dilute their legal obligations, including under the convention.  This tactic has reached a peak now that countries are discussing who should provide financial resources to address the destruction the climate crisis is causing, which in jargon is called “loss and damage”. 

In 2015, rich polluters attempted to exempt themselves from liability and deny peoples’ right to compensation by adding a disclaimer paragraph to the loss and damage article of the Paris agreement. 

Throughout 2023 – while discussing how to design a newly established fund to address climate-related loss and damage – developed countries worked to deny the application of one of the UNFCCC’s foundational principles of “common but differentiated responsibilities”, premised on the notion of equity and central to a climate justice approach. 

A very limited fund 

If resourced at scale, and it is estimated that hundreds of billions of dollars are needed, the loss and damage fund could bring urgently needed relief and recovery to those who need it most.  

However, denial and obstruction remain the name of the game for wealthy countries, as deliberations since Cop27 when countries agreed to establish the fund have shown. The result is a new fund that risks not delivering climate justice and remedy. 

The loss and damage fund’s proposed governing instrument agreed in Abu Dhabi earlier this month does not oblige rich historic polluters to pay, gives no indication of the fund’s scale, fails to put affected groups in the driver’s seat and – critically – omits any requirement that its operations adhere to human rights obligations. 

A purportedly interim arrangement to host the fund under the World Bank risks becoming permanent and will undermine its ability to meet the needs and priorities of those most affected: the World Bank is largely driven by the interests of wealthy nations, has a business model of providing loans rather than grants, and lacks critical modalities to ensure communities can directly access funds. 

To show good faith and in line with their obligations under international law, developed countries must now actually deliver loss and damage finance at scale, starting at Cop28. But even aside from the financial imperatives, for the loss and damage fund to meet the needs and priorities of those who need it most, it will have to be improved significantly from the draft agreed so far. Cop28 must give critical guidance to the board of the fund to further develop it in an inclusive, participatory, human rights-based, non-discriminatory and gender-transformative way. 

These words have concrete, practical implications, such as ensuring that its activities do not exclude or are ill-adapted for certain groups such as persons with disabilities, that marginalised communities have direct access to funding, and that Indigenous Peoples’ right to free, prior and informed consent is respected at all times. 

However, regardless of these improvements, the loss and damage fund’s dependence on voluntary contributions and the current lack of explicit reference to human rights in its governing instrument make it about charity rather than remedy and will limit its ability to function at the scale required. 

Enter the courts

The continued erosion and evasion of duties under the UNFCCC by wealthy nations has led to people and communities such as a Peruvian farmer and Indonesian islanders, and countries such as Vanuatu resorting to courts.

International and national courts have long upheld the right to remedy and reparations, and are now starting to do so in the context of climate harm. As Gaston Browne, the prime minister of Antigua and Barbuda, a highly climate-vulnerable country, has compellingly said: “We cannot simply continue with endless negotiations and empty promises. The political process must be informed by existing binding obligations under international law.”

He was speaking at an advisory proceeding currently underway before the International Tribunal for the Law of the Sea – one of three international tribunals that will soon provide much-needed clarity on states’ international obligations in the context of climate change and the consequences of breaching legal duties.

Two other proceedings are also taking place before the  Inter-American Court for Human Rights and the International Court of Justice. 

Reparations at scale

The outcome of these advisory processes will be crucial to inform the UN climate negotiations, and states can and must strengthen the prospects of securing redress for climate harm within the UNFCCC.

But we should not put all our eggs in the loss and damage fund’s basket. To advance climate justice, we need to continue pursuing multiple pathways at the local, national, regional and international levels to deliver reparations at scale. 

Litigation is an important accountability tool and can be an important avenue for some, but it is unfortunately not equally accessible to all. It cannot be that every climate victim, from those displaced by the floods in Libya to those deprived of their Indigenous cultural heritage in the Arctic, must await their day in court.

Structural, multilateral solutions too are needed, drawing foundational guidance from existing UN guidelines developed on remedy and reparations, and applying relevant lessons from precedents such as the UN Compensation Commission.

We must move away from empty promises and push past voluntary finance. Communities affected by climate damage cannot afford to wait any longer.

Lien Vandamme is a senior campaigner at Ciel, specialising in the intersection between human rights and climate change with a focus on the UN climate regime, and climate-related loss and damage.

Joie Chowdhury is a senior attorney at Ciel, specialising in human rights, climate change and public international law, with a current focus on the ongoing climate advisory proceedings and climate reparations.

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