The following article is part of an Eco-Perspective special in which the Vermont Journal of Environmental Law is collaborating with the VLS COP22 Observer Delegation
By Jonas Reagan
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.