archive material: updated May 2021
The Case for Climate Justice
All assessments of vulnerability to climate change concur that the countries whose people are most seriously threatened are those which bear the least responsibility for greenhouse gas emissions. This is the core injustice that strives to make its voice heard in international discourse on climate change.
In 1992, the year in which the UN Framework Convention on Climate Change signalled the start of a coordinated global response, the CO2 emissions attributable to the United States were four times greater than any other country, over the period from 1850. Historic emissions are relevant because carbon dioxide remains in the atmosphere for many decades.
In researching a more recent cumulative period, 1990-2015, Oxfam and the Stockholm Environment Institute produced dramatic evidence of climate injustice. The richest one percent of the world’s population were responsible for more than twice as much carbon pollution as the 3.1 billion people who made up the poorest half of humanity.
Contemporary figures are similarly lopsided, with as many as 100 countries accounting for only 3.6% of global greenhouse gas emissions in 2018. Yet it is amongst these low emitting countries that the most damaging impacts of climate change are to be found. According to Germanwatch, compilers of the Climate Risk Index, “eight of the ten countries most affected (by extreme weather events) between 2000 and 2019 are developing countries with low or lower middle income per capita.” The countries most seriously affected in that period were Puerto Rico, Myanmar and Haiti.
The experience of these climate impacts at the scale of individual households introduces human rights concerns into the grievance of climate justice. Basic rights to food, water, health and shelter, already a daily struggle for the world’s poorest households, are disrupted by unfamiliar weather patterns, coastal inundation, and higher temperatures. In their foot-dragging approach to international climate negotiations, rich governments turn a blind eye to the potential failure of the UN sustainable development goals on account of climate change.
The sense of grievance within poorer countries has been accentuated by the focus on two degrees Centigrade as a tolerable rise in temperature. Without any rigorous evidence in science, this figure was adopted by politicians in the first decade of the 21st century, until its cautious modification in the 2015 Paris Climate Agreement.
Many small and low-lying island states are unlikely to survive two degrees of warming. And the extent of the devastation of Barbuda and other Caribbean islands during the 2017 hurricane season raised serious questions about the a tolerance threshold. Such extreme events are already more commonplace, and the poorer countries lack the financial reserves of their wealthy neighbours necessary to construct defences or to restore normal economic conditions in the aftermath.
An all-embracing global average rise in temperature is a flawed concept, regardless of its prescribed level. Most climate models predict that richer countries in temperate zones will benefit from higher crop yields within modest levels of warming. By contrast, crops in tropical regions are already approaching the limit of their sensitivity to peak daytime temperatures and warmer nights.
For example, the International Centre for Tropical Agriculture believes that a two degree temperature rise in West Africa will make it impossible to grow cocoa, without relocating plantations. The fate of the Arabica coffee bean, the world’s most popular variety, is subject to similar concern due to its sensitivity to temperature.
Even the earliest scientific reports on climate change warned that most of inland Africa will experience significantly higher increases than a global average. And on the Tibetan plateau temperatures have been rising at double the global average over the last three decades, setting in motion the retreat of most Himalayan glaciers, with complex implications for the watersheds of South Asia, home to over a billion people.
Such concerns about oversimplifying the impact of global warming were addressed in 2017 by the unlikely source of the International Monetary Fund. Its Global Economic Outlook concluded that: “increases in temperature have uneven macroeconomic effects, with adverse consequences concentrated in countries with relatively hot climates, such as most low-income countries.
The concept of climate justice has recently acquired a new dimension through the School Strikes movement, inspired by Greta Thunberg. Through no fault of their own, young people in both richer and poorer countries face a barrage of disturbing forecasts for their planetary home within the span of their lifetimes. Intergenerational mobilisation across the globe may be the straw that finally breaks the camel’s back of political intransigence on climate justice.
Climate Justice in International Law
UN Framework Convention on Climate Change
The case for climate justice was formally recognised over 25 years ago in the UN Framework Convention on Climate Change (UNFCCC). This landmark Convention was signed at the Rio de Janeiro “Earth Summit” in 1992 with the ultimate objective of “stabilization of greenhouse gas concentrations in the atmosphere.”
The first of the UNFCCC “Principles” stipulates that countries “should protect the climate system…….on the basis of equity and in accordance with their common but differentiated responsibilities.” This Principle would be observed by calling on 37 of the richest countries (plus the European Union) to take the lead in decisive cuts in emissions, allowing space within the carbon budget for poorer countries to exercise their right to development.
The richer group also committed to providing finance and technology to poorer countries, both for adaptation to the damaging effects of climate change and for the transition to a low carbon economy.
This key equity principle of common but differentiated responsibilities has been dutifully restated in the two subsequent international agreements forged within the UNFCCC, the Kyoto Protocol (1997) and the Paris Climate Agreement (2015). However, its tenets have been chipped away over the long years of negotiations dominated by the large delegations assembled by major economic powers. Poorer countries feel that recognition of the case for climate justice has been grudging and inadequate.
The US and other rich countries deny historic responsibility for global warming on grounds that the science emerged only recently. However, this argument overlooks the long years of denial of peer-reviewed science that, until very recently, has pervaded even the upper echelons of US business and government.
The Kyoto Protocol was the first global legal framework for implementing cuts in greenhouse gas emissions. It was negotiated in 1997 and eventually came into force in 2005.
Consistent with the climate justice principles of the parent Convention, the Protocol established that the designated group of richer countries would be subject to legally binding targets for cutting emissions, across the first “commitment” period 1990-2012. Poorer countries would have no specific targets.
A number of factors undermined the ambitions of the Kyoto Protocol. The US refused to ratify it and allowed its own greenhouse gas emissions to increase over that period. Furthermore, the detailed rules excluded emissions from aviation and shipping, sources which have risen exponentially and which are substantially attributable to richer countries. And the outsourced manufacturing of consumer goods to China, and other regions excused from Kyoto Protocol targets, has devalued claims of success in reducing emissions by countries such as the UK.
These shortcomings allowed global emissions to mushroom by 38% over the commitment period. By 2020, the global average temperature had increased by 1.2 degrees Centigrade since pre-industrial times. The concentration of carbon dioxide in the atmosphere is now at its highest level for at least 800,000 years.
Paris Climate Agreement
Continued tension over the principle of climate justice contributed to chronic misunderstandings at the 2009 UN climate conference in Copenhagen. Negotiators were forced to reschedule the timetable for a successor to the Kyoto Protocol, eventually reaching agreement at the Paris climate conference in 2015, six years later than originally intended.
The six-year delay indicates how fundamentally the new agreement differs from its predecessor. The targets-based, legally binding rigour of the Kyoto Protocol totally unravelled.
In its place has emerged a “pledge and review” system in which every country offers its Intended Nationally Determined Contributions. These are independent targets for cutting emissions up to 2030, according to each country’s circumstances and inclination. Even the poorest countries are required to participate, by articulating their plans for performing better than “business as usual.”
These pledges are not legally binding. And the Paris Climate Agreement fails to provide a clear roadmap for securing the $100 billion of annual climate finance promised at Copenhagen in 2009.
The Paris Agreement therefore sets aside the concept of equitable division of a science-based “carbon budget”, reserving sufficient for poorer countries to grow their economies and achieve the Sustainable Development Goals.
Statistics that question such an approach are stark in their evidence of injustice. According to the Netherlands Environmental Assessment Agency, in 2018 the average US citizen was responsible for emissions of 16.0 tonnes of carbon dioxide. The comparable figure in most countries of sub-Saharan Africa was significantly less than 1.0 tonne. In China per capita emissions were 7.8 tonnes and India 1.9 tonnes.
Divorcing pledges from science has had the predictable result that they are inadequate to deliver the Agreement’s headline goal of “holding the increase in the global average temperature well below 2 degrees”. The UN Environment Programme’s 2020 Emissions Gap Report concludes that “the world is still heading for a temperature rise in excess of 3°C this century”
The one consolation for climate justice in the Paris Agreement was the unexpected inclusion of a resolve “to pursue efforts to limit the temperature increase to 1.5 °C …. recognizing that this would significantly reduce the risks and impacts of climate change.” Whilst many scientists doubted the feasibility of this ambition, the subsequent 2018 report, Global Warming of 1.5C, by the Intergovernmental Panel on Climate Change has unleashed public pressure on governments to be more decisive on climate action.
It has also inspired the “net-zero” articulation of emissions targets, with many national timetables of 2050 consistent with the science of a 1.5 degree limit to warming. US President Joe Biden has not only overturned the Trump administration’s withdrawal from the Paris Agreement, but aims to join other countries in pursuing a 2050 deadline for net-zero.
Just as global warming has the greatest impact on the poorest countries, in turn they will benefit most from any acceleration in the stabilisation of greenhouse gas emissions.
Climate Justice Finance
No topic is more likely to derail international climate negotiations than the provision of adequate financial support for low income countries. The natural justice that the “polluter pays” for the global impacts of climate change comes to roost on the reluctant richest countries.
Quantifying these climate justice finance requirements and the extent to which they are being met is notoriously difficult. The Adaptation Gap Report 2020 published by the UN Environment Programme estimates that current annual adaptation needs in developing countries amount to $70 billion, rising to $140-$300 billion per year by 2030.
For mitigation of emissions, the International Institute for Environment and Development has costed the plans submitted by the 46 Least Developed Countries alone at $58 billion per year from 2020-2030.
The first point of reference for this funding will be the domestic budgets of the developing countries themselves. Although these are likely to be small in relation to the need, there is evidence of leadership, especially in relation to adaptation costs. For example, Bangladesh regularly allocates over 5% of its total public spending to its climate projects.
Nonetheless, low income countries will depend greatly on international climate agreements to bridge their climate financing gap. The financial dimension of climate justice is secured in the UN Framework Convention on Climate Change (UNFCCC) which commits richer countries to contribute to the costs of reducing emissions and adapting to impacts in less fortunate countries.
The Convention has powers to administer funds for this purpose, principally through the Green Climate Fund which became operational in 2015, with a governing board whose membership is evenly divided between developed and developing countries.
A quantified commitment to international climate finance was first articulated in the 2009 Copenhagen Accord. Richer countries agreed to “a goal of mobilizing jointly USD 100 billion dollars a year by 2020 to address the needs of developing countries.” The Paris Climate Agreement extended this commitment to 2025, although the text wording is flimsy and concerns climate justice campaigners.
Progress towards the 2020 commitment is monitored by the Organization for Economic Cooperation and Development (OECD). Its most recent report presents a figure of $78.9 billion for climate justice finance in 2018. The Covid-19 pandemic casts doubt on whether the $100 billion promise will have been achieved by 2020; data for that year may not be available until 2023.
The OECD figure for 2018 reveals that loan finance contributed almost 80% to the total. Development agencies such as Oxfam have questioned whether the inclusion of loans, as opposed to grants, is consistent with the spirit of the UNFCCC obligation. These agencies also express concern that climate finance has skewed significantly towards mitigation, thanks to the potential commercial returns of renewable energy projects.
To place the scale of climate justice finance in context: in 2019 the world’s 50 leading economies provided subsidies totalling $178 billion for the production of fossil fuels, according to the OECD. This is at a time when science indicates that the majority of fossil fuel sources should be left in the ground, if global warming targets are to be met.
Some of the disappointment over climate justice finance can be attributed to the stuttering progress of the Green Climate Fund (GCF). This flagship vehicle should be a magnet for new funds, enabling the UN climate leadership to shape project and funding strategies.
Administered from South Korea, the Fund has struggled with fundraising, administration, investment of its assets and retention of senior staff. Although since reversed by President Biden, the withdrawal of US funding by the Trump administration was disruptive.
Loss and Damage
Unfortunately, there are limits to the scope of adaptation, beyond which the forces of climate change gain the upper hand. The most extreme weather events, capable of overwhelming defences of property and crops, are no longer exceptional. “Slow onset” events such as rising sea level and desertification can render local economies unviable. Costs of reconstruction and economic recovery of such disasters are described in UN climate negotiations as “loss and damage.”
Unequal scope for effective adaptation and disaster risk reduction between rich and poor countries presents one of the great challenges for climate justice. Armed with their highly educated, healthy and skilled workforces, industrialised countries are already committed to defensive projects, in anticipation of floods, coastal erosion and other consequences of rising temperatures.
Price tags of hundreds of millions of dollars are no disincentive. And invariably the wealthy nation state will backstop the worst case scenarios of loss and damage, either by underwriting uninsurable risks or by providing emergency compensation.
By contrast, urgent plans to construct sea defences in many African coastal cities remain largely on the drawing board. The risk of disaster is enhanced, with no capacity of national governments to step in with recovery funds if the worst happens. Such climate vulnerability raises the cost of foreign loan finance, arguably an unfair financial burden.
Across the developing world, countries therefore argue that the UNFCCC principles of climate justice should compensate them for loss and damage. Funding suggestions include taxation of polluters such as aviation and shipping. Despite opposition from the richer countries, the Paris Climate Agreement does acknowledge that the topic should at least be considered – through a structure known as the Warsaw International Loss and Damage Mechanism.
However, the scope of this mechanism is very limited and little real progress has been made. Most discussion has focused on initiatives of NGOs and private financial companies that pioneer innovative forms of climate insurance. But the real challenge for a loss and damage mechanism is how to subsidise risk that becomes uninsurable, as is inevitable.
Furthermore, the US insisted on a rider to the Agreement stipulating that the loss and damage mechanism “does not involve or provide a basis for any liability or compensation.” The clause has constrained negotiations from tackling the financial consequences of loss and damage.
This serious flaw in the concept of loss and damage as a tool for climate justice is mocked by the regular incidence of extreme events in the US itself. The Federal government allocated $48 billion to deal with the damage caused by a single disaster – Hurricane Sandy in 2012. Former Secretary of State, John Kerry, said in 2016: “We spent $230 billion in the United States of America last year just to clean up after eight storms.”
Climate change is acting as a catalyst on migration, both forced and voluntary, adding to international anxiety about existing patterns of human displacement. One of the first acts of the new US President, Joe Biden, was to order a study into the options for resettling persons displaced by climate change.
This particular climate impact is most readily conjured in the public imagination as an island in the Pacific disappearing under rising seas, leaving its population with no choice but to seek a new home country. There could be no more vivid illustration of climate injustice, the footprint of contemporary lifestyles on distant minorities with no powers of restitution.
Concerns about sea level also focus on densely populated areas of low-lying cities. Some of the world’s most famous coastal cities feature in doom-laden predictions of their inundation.
A World Bank study of the three most vulnerable continental regions estimates that land occupied by 143 million people will become unviable by 2050 due to slow-onset climate change impacts. Apart from sea level rise, these include desertification and water scarcity.
Sudden onset disasters such as extreme weather events have increased in intensity to the extent that many governments provide for emergency temporary evacuations of entire local populations, as an adaptation measure. Such facilities, now a common defence against cyclones in South Asia, have already saved countless lives. However, homes remain vulnerable to destruction, provoking their occupants to relocate.
According to the Internal Displacement Monitoring Center, 30 million people were forced from their homes in 2020 on account of extreme weather, by far the largest cause of internal displacement. Oxfam research has demonstrated that displacement caused by extreme weather events is five times more likely to affect people in poorer countries than those in richer economies.
Approximate upper estimates suggest that, by 2050, 250 million people will have taken the bigger step of entering a new country on account of climate change, a figure similar to today’s entire migrant worker population. At the other end of the migration spectrum will be the poorest families, perhaps unable to move anywhere, thereby remaining vulnerable to the greatest climate risks.
The prospect of regions emptying of their inhabitants as they become “beyond adaptation” is already exercising the international community. Environmental degradation will rarely be the sole factor in a decision to migrate, nor can it always be blamed unequivocally on climate change. Climate change and migration therefore bring yet more ambiguity to the task of classifying displacement as forced or voluntary, for the purpose of establishing rights of protection for those affected.
This question was tested by a citizen of the Pacific island nation of Kiribati who argued that his home was no longer safe from the sea. His application for protection in New Zealand was analogous to a refugee seeking political asylum. Although a UN human rights committee ruled against the application, its assessment and the reaction of the New Zealand government were both sympathetic to the principle that a climate refugee should not be forced to return to a place where a normal life is impossible.
The UN Refugee Agency is uncomfortable with the terminology of “climate” or “environmental” refugees out of concern for destabilising the long-established rights of political asylum under the 1951 Refugee Convention. The Paris Climate Agreement of 2015 delivered belated recognition that the many ambiguities presented by climate migration deserve international attention. A task force has been established on potential approaches to address displacement related to the adverse impacts of climate change.
François Crépeau, the former UN Special Rapporteur on the human rights of migrants, controversially proposed that climate-induced migration should be considered as a proactive adaptation strategy. The government of Bangladesh is believed to be considering such an approach and the International Organization for Migration has likewise expressed the view that migration could be as much a solution to climate change as a problem.
An opposite view, gaining ground, insists that climate displacement, whether internal or across a border, should be contemplated only as the very last resort. Stabilising the climate through net-zero carbon goals is the fundamental solution, supported as necessary by determined investment in adaptation to enable communities to remain in their homes.
Some resemblance to this hierarchical approach can be found in The UN Global Compact on Migration, a new framework of international of cooperation that aims to implement safe, orderly and regular migration. Adopted in 2018, the Compact addresses climate displacement issues in some detail, including those specific to crossing national borders. It is possible that an eventual solution to the rights of climate displaced persons could be found through this framework.
The tepid ambition of UN climate agreements, together with their plodding implementation, has provoked a growing global movement to remedy climate injustice through litigation. With over 1,000 actions believed to be under way, governments and corporations have been put on notice that the years of obfuscation and denial of responsibility have run out of road.
A long-running and widely-known example of litigation is Juliana v. United States, the action coordinated by Our Children’s Trust against the federal government. A group of 21 youngsters under the age of twenty argued that failure to reduce the combustion of fossil fuels violates their constitutional rights to life, liberty and property.
Whilst this action may ultimately fail, its profile of youthful plaintiffs and rights-based grievance relating to the impact of climate change is emerging as a potent combination. The most telling current examples have emerged in Europe. In Germany, youth activists persuaded the highest court that their long term freedom would be compromised by inadequate policies to reduce emissions. The German government responded almost immediately with more decisive climate policies.
A similar youth case in Norway was unsuccessful when the Supreme Court allowed the government to continue issuing licences for oil exploration in the Arctic. But another rights-based lawsuit has been submitted to the European Court of Human Rights arguing that the right to life is violated by excessive emissions. Presented by six young persons from Portugal, this case is significant in citing 33 of the countries under the court’s jurisdiction.
Even a conventional civil society challenge to the inadequacy of government action reached a favourable verdict by reference to the European Convention on Human Rights. Following the ruling by the High Court in The Hague on the lawsuit filed by the Urgenda Foundation, the Dutch government has been forced to ratchet up its target for emissions reduction.
These examples illustrate actions which seek either to demonstrate that government climate change policy is not being implemented, or that the policy itself is inadequate. A separate strand of actions target the oil majors, typically aiming to attribute responsibility for adaptation costs arising from destructive global warming, citing evidence of corporate denial of established science.
In the US the slow fuse of litigation against Exxon Mobil and other oil corporations struggled through the years in which the Trump administration was able to influence the process. Judgements are falling on the side of the fossil fuel companies, ruling that climate change is a matter for government policy and regulations, not the law courts.
A possible riposte to these setbacks has been opened up by the fast-evolving science of event attribution. Through analysis of datasets, scientists can now quantify the change in probability of an extreme weather event on account of climate change. The capacity to identify the fingerprint of global warming may clear a path for damage claims against governments and corporations.
The armies of corporate lawyers have finally met their match in the court in The Hague, the city hosting the headquarters of Shell. In a dramatic ruling, the court has ordered Shell to bring its emissions in line with the Paris climate targets. Once again the case hinged on the European convention on human rights.