The Hurdle of Climate Reparations
In the run up to COP21, Rishikesh Ram Bhandary explores how we have come to understand responsibilities to address climate change.
Cass Sunstein, professor at Harvard Law School, published an op-ed in Bloomberg View cautioning us about how “climate reparations” posed to be a major hurdle to an otherwise near-certain global agreement on climate change, this December, in Paris. With the portrayal of climate reparations as a hindrance to an agreement by questioning the historical responsibility of industrialized countries have to climate change, Sunstein captures the arguments put forward by Eric Posner and David Weisbach’s book Climate Change Justice. This commentary explores this argument further and reassesses the hurdles before the Paris agreement.
First, we need to start with a definitional issue. What exactly is “climate reparations”? Sunstein has banded together mitigation, adaptation, and loss and damage within this umbrella term. Financing the reduction of greenhouse gases (mitigation) in developing countries generates a global public good – a more stable climate system- something that developed countries benefit from as well. Financing adaptation to the impacts of climate change may not be a global public good in the same manner but the need for international support for adaptation is well recognized even though the division of responsibilities may be uncertain (this is explored more below). As climate change has become a reality and with the growing awareness of the potential limits to adaptation, loss and damage to the impacts of climate change has become an important, distinct issue.
Second, is historical responsibility a sound legal basis to negotiate responsibilities to address climate change? The answer to this needs to recognize the enormous shift that we have seen in the emerging architecture of global climate governance. Conventional arguments against historical responsibility range from the lack of awareness of rich countries to the negative effects of greenhouse gas emissions to the difficulty in holding the current generation responsible for a problem that is an accumulation of actions of previous generations.
What we cannot dismiss is that the current generation has taken a very long time to get serious about climate action even though there has been overwhelming evidence to suggest that ambitious action is needed. We do not have to go into the rationales for holding the current generation responsible thanks to the accumulated wealth and opportunities created by ancestors to make the claim that willful delay in climate action can be associated with a claim to remedy the harm.
The twist in Sunstein’s argument is his suggestion that if we actually ran a grand ledger of sorts- crediting countries for actions that enhance welfare like inventing medicine and debiting them for harms caused like greenhouse gas emissions, Sunstein assumes that the rich countries will come out winning. Such an exercise, he suggests, would negate the whole historical responsibility argument advocated by developing countries as the negative effects of climate just would be just one item in a larger bookkeeping exercise between developed and developing countries.
Another way of formulating the full accounting argument would be to suggest that the positive externalities created by products developed by the industrialized world have not been captured and a full accounting exercise would allow us to capture this unrecognized benefit. The problem with this argument, however, is that many developing countries feel that essential innovations are undersupplied because intellectual property rights award producers rent that is disproportionately high to the cost of innovation.
Moreover, a call for “full accounting” takes a very narrow view of the process of industrialization and innovation in general. It equally ignores the intricate and inseparable linkages between industrial development, empire-building and colonization. How will we apportion India the credit for having had a large market for British textiles without which bobbins and spindles in Manchester would not spin round the clock? What this demonstrates is the difficulty in embarking on an accounting exercise as well as the futility of it.
Furthermore, it is in the interest of developed countries to foster a global transition to cleaner technologies- mitigation of greenhouse gas is a global public good and the owners and copyright holders of technologies necessary are often “northern” ones. In addition, not only do certain constituencies within the West benefit from transfers of climate finance to the developing world but aid often affords provider countries with strategic leverage as well.
The biggest problem with the argument for a ledger is not the difficulty for it to be substantiated or the attendant moral implications. It is the continuation of the narrative of the north and the south and the circular finger-pointing exercise that the climate negotiations so desperately needs to avoid.
Third, when we examine the ground realities of the climate negotiations portray a different landscape. First of all, the UN Framework Convention on Climate Change and its subsequent decisions have very well acknowledged the importance of addressing adaptation actions in developing countries. Even in the negotiations for the Paris agreement, the need to finance adaptation actions in developing countries is, in principle, universally supported. The question that needs to addressed is the balance of international versus national responsibilities and the basis via which we understand those responsibilities.
It is important to remember that the countries that have been the most vocal about loss and damage have also been the ones that have been the most enthusiastic about accepting a dynamic interpretation of responsibilities. In fact, the principle of historical responsibilities has moved away from a corrective interpretation with the addition of “in light of national circumstances” as the appendage term to the principle. This may seem like a minor shift in language but it actually symbolizes a major shift in how we have come to understand responsibilities to address climate change. Similarly, by not recognizing the willingness of many developing countries to move beyond the developed-developing dichotomy that has been a feature of the climate talks, we lose the necessary nuance that we can leverage to foster an agreement.
The challenge for Paris is to tread the middle ground. Developing countries are understandably averse to idea that a well defined list of countries (Annex II in the UNFCCC) may no longer be responsible to provide financial and technological support. Instead, efforts are underway to ascribe responsibilities to an open-ended and self-appointed list of countries- “countries in a position to do so.” Developed countries, on the other hand, are not in a position to provide large scale transfers to developing countries. Developing countries, which have now become economic competitors, do not have similar obligations and providing finance without similar commitments from those countries is a tough sell domestically. Perhaps, the most important push for finance may not come from the finance section of the negotiating text at all. Credible intention and action by all governments to transition away from carbon-intensive energy use into clean energy technologies will be critical in driving financial flows. Of course, relying on such market forces alone would be inadequate and Paris must provide clarity on how public finance will be mobilized and used to address gaps and needs of the most vulnerable populations.
It is also worth asking a simple question: why do we need a global agreement on climate change under the auspices of the United Nations? An agreement that merely institutionalizes the status quo through country pledges and review will remain inadequate. What the most marginalized members of the international system need is a collective responsibility by the international community that assures them of a response when climate impacts get out of control. This collective responsibility needs to be recognized and institutionalized as a matter of principle in the Paris agreement. Regardless of the argument on historical responsibilities, it is hard to refuse moral responsibility to protect those sections of the population.
The threat to a climate change agreement is not loss and damage or “climate reparations.” Most of the world powers would be happy to see loss and damage get dropped from the negotiations all together, the same manner in which 1.5 degrees was dropped in Copenhagen for they too will be be drawn into liability provisions one way or the other. What is at stake is a just climate change agreement. Without loss and damage provisions, it certainly won’t be one.
Rishikesh Ram Bhandary is Junior Research Fellow at the Center for International Environment and Resource Policy and a PhD candidate at the Fletcher School of Law and Diplomacy.
