Voices unheard – affected communities and the climate negotiations on loss and damage

ABSTRACT

The Paris Agreement has been hailed as a victory for multilateralism. However, collective efforts to reach the Paris goals are presently insufficient to protect those adversely affected by the impacts of climate change who stand to suffer loss and damage (L&D). This calls for an assessment to what extent those most vulnerable and adversely affected by climate impacts can shape decisions on L&D. Taking an international law perspective, the article finds that despite a strong normative demand, the mandate and procedures for participation under the United Nations Framework Convention on Climate Change (UNFCCC) are presently insufficient to lend an effective voice to affected communities in the negotiations. The article considers the suitability and political feasibility of the affected persons’ organisations (APO) model of representation in the climate regime, specifically in the context of the L&D negotiations. It argues that this model could in principle be useful to enhance the participation of communities vulnerable to and affected by L&D. However, the article finds that in order for the APO model to become a political reality in the specific context of L&D, conceptual challenges of who is affected need to be addressed and a shift in the framing of L&D is required.

KEYWORDS:

• Affectedness
• participation
• climate change
• loss and damage
• UNFCCC
• Paris Agreement

Acknowledgements

Many thanks to those who participated in the Affectedness Conference in Tübingen in November 2017 where an earlier draft of this article was presented and discussed. Many thanks also to the editors of this collection, especially Jan Sändig, for helpful guidance in sharpening the arguments, as well as to the two anonymous referees. Finally, many thanks also to Jochen von Bernstorff and Eugenia Recio for their comments on earlier versions of this article.

Notes

1. See only R. Few et al., ‘Public Participation and Climate Change Adaptation: Avoiding the Illusion of Inclusion’, 7:1 Climate Policy (2007), 46; R. Lidskog and I. Elander, ‘Addressing Climate Change Democratically. Multi-level Governance, Transnational Networks and Governmental Structures’, 18:1 Sustainable Development (2010), 32; G. Blue, ‘Public Deliberation with Climate Change: Opening Up or Closing Down Policy Options?’, 24:2 Review of European, Comparative and International Environmental Law (2015), 152.

2. See Sändig et al., 'Affectedness in international institutions'.

3. Ibid., 3.

4. Ibid.

5. For a typology of APOs, see Hasl, 'A typology of affected persons’ participation'.

6. See only Rogelj, et al., ‘Paris Agreement climate proposals need a boost’, 634; and UNFCCC, Synthesis Report on the Aggregate Effect of the Intended Nationally Determined Contributions. UN Doc. FCCC/CP/2015/7, 30 October 2015, paras 33–42.

7. For relevant discussion, see Anderson and Peters,’The trouble with negative emissions’, 182.

8. Schellnhuber, et al., Turn Down the Heat (2012), xiii-xviii; Adams, et al., Turn Down the Heat (2014), xvii. See also IPCC, ‘Summary for Policymakers’ [Special Report, 2012], 14.

9. IPCC, ‘Summary for Policymakers’ [Synthesis Report, 2014], 19.

10. United Nations Framework Convention on Climate Change, 1771 UNTS 107, 31 ILM 849, New York, 9 May 1992, in force 21 March 1994 [UNFCCC Convention].

11. UNFCCC Secretariat, A literature review on the topics in the context of thematic area 2 of the work programme on loss and damage: a range of approaches to address loss and damage associated with the adverse effects of climate change, UN Doc. FCCC/SBI/2012/INF.14, 15 November 2012, 2.

12. See Huq, ‘Loss and Damage: A Guide for the Confused’, Climate Change News, 2014, http://www.climatechangenews.com/2014/10/20/loss-and-damage-a-guide-for-the-confused (accessed 10 October 2017); Durand and Huq, ‘Defining loss and damage: Key challenges and considerations for developing an operational definition’, ICCCAD Working Paper, 2015, http://www.icccad.net/wp-content/uploads/2015/08/Defininglossanddamage-Final.pdf (accessed 2 December 2018); Vulturius and Davis, ‘Defining loss and damage: The science and politics around one of the most contested issues within the UNFCCC’, SEI Discussion Brief, 2016 https://mediamanager.sei.org/documents/Publications/Climate/SEI-DB-2016-Loss-and-damage-4-traits.pdf (accessed 2 December 2018).

13. Paris Agreement, 55 ILM 740, Paris, 15 December 2015, into force 4 November 2016 [Paris Agreement], Article 8.

14. UNFCCC, Decision 1/CP.21, Adoption of the Paris Agreement, UN Doc. FCCC/CP/2015/10/Add.1, 29 January 2016, paragraph 51. For relevant discussion, see Mace and Verheyen, ‘Loss, Damage and Responsibility after COP21’, 206.

15. Von Bernstorff, Hasenclever and Sändig et al., 'Affectedness in international institutions'.

16. See Brem-Wilson, 'Legitimating Global Governance'; Goodin, ‘Enfranchising All Affected Interests’, 67.

17. For the purposes of this article, and due to the nature of L&D, we only consider here those ‘adversely affected’ by climate change, not those standing to benefit from it.

18. See Arrhenius, ‘The Boundary Problem in Democratic Theory’, 22.

19. See Stewart, ‘Remedying Disregard’, 224 and 226.

20. For a discussion of the latter, see Tomlinson, ‘Getting a Seat at the Table’, 90–91.

21. See Adger, Social capital and climate change, 1.

22. See for example, DARA and CVF, Climate Vulnerability Monitor 2nd Ed., 19 and Kreft, Eckstein and Melchior, Global Climate Risk Index 2017, 2.

23. IPCC, ‘Summary for Policymakers’ [Working Group II, 2014], 13.

24. Ibid., 21.

25. Cameron, Shine and Bevins, Climate justice, 6.

26. Ibid.

27. See Hallegatte et al., Shock waves, 92.

28. Otto et al., ‘Social vulnerability to climate change’, 1658.

29. IPCC, note 23, 6.

30. Cameron, Shine and Bevins, note 25, 6.

31. There are of course other relevant justifications for why affected communities should be given an effective voice in the UNFCCC deliberations on L&D, including justice, procedural fairness and democratic legitimacy. For an overview of common arguments see the introduction to the recent special issue on public participation and climate governance by Jodoin, Duyck and Lofts (2015), at 119. It is not the author’s intention to suggest that these arguments are any less valid. Rather, the present article intends to provide a different angle to these discussions by highlighting the gap between normative aspirations and the reality of participation of affected populations. It therefore focuses on the rules and procedures that have been agreed, as a reflection of political will, and the potential for their reform.

32. Rio Declaration on Environment and Development, Principle 10. For relevant commentary, see Ebbesson, ‘Principle 10: Public Participation’, 292.

33. Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Aarhus 25 June 1998 (in force 30 October 2001), Articles 1 and 3.

34. Ibid., Article 3.7.

35. United Nations Economic Commission for Latin America and the Caribbean, Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, Escazú, 4 March 2018. The agreement requires 11 ratifications to enter into force.

36. Almaty Guidelines on Promoting the Application of the Principles of the Aarhus Convention in International Forums, UN Doc. ECE/MP.PP/2005/2/Add.5, 20 June 2005, Almaty 27 May 2005, Annex.

37. Ibid., paragraph 30a.

38. Ibid., paragraph 15.

39. Ibid., paragraphs 28–29, 35.

40. Ibid., paragraph 29 and 37.

41. Duyck, ‘Promoting the Principles of the Aarhus Convention in International Forums’, 128.

42. UNFCCC Convention, Article 6.a.iii. In this analysis we are primarily interested in public participation in the international negotiations. For an analysis of how the public participation component of Article 6 UNFCCC translates into national communications, see Carvalho and Gupta, ‘State commitment to promoting public participation’, 123.

43. UNFCCC, Decision 11/CP.8, New Delhi Work Programme on Article 6 of the Convention, UN Doc. FCCC/CP/2002/7/Add.1, 28 March 2003; Decision 9/CP.13, Amended New Delhi Work Programme on Article 6 of the Convention, UN Doc. FCCC/CP/ 2007/6/Add.1, 14 March 2008; Decision 15/CP.18, Doha Work Programme on Article 6 of the Convention, UN Doc. FCCC/CP/2012/8/Add.2 (28 February 2013).

44. UNFCCC, Decision 11/CP.8, paragraph 15.

45. Paris Agreement, Preamble, Articles 6.6, 7.2, 7.6, 9.4, and 11.1.

46. Ibid., See also UNFCCC, Decision 1/CP.21, Preamble.

47. Paris Agreement, Article 7.5.

48. Paris Agreement, Article 12.

49. Paris Agreement, Preamble.

50. For a relevant discussion of some of the constraints of developing country parties to negotiate effectively under the UNFCCC, see Gupta (1997), 149.

51. de Silva, ‘Public Participation in International Negotiation and Compliance’, 582.

52. Observer participation is regulated under Article 7.6 of the UNFCCC and the rules of procedure of the COP.

53. UNFCCC, Report on good practices of stakeholder participation in implementing Article 6 of the Convention, UN Doc. FCCC/SBI/2014/3, 2 June 2014, paragraph 17.

54. Ibid. paragraph 18.

55. UNFCCC, ‘Statistics on Participation and in-session engagement’, https://perma.cc/FCU7-JQCZ (accessed 12 April 2018).

56. A further breakdown of this number into actual NGOs versus APOs was not feasible due to lack of available data.

57. See for example, Lennon and Duyck, ‘Public Participation Both Winner and Loser at UN Climate Negotiations in Bonn’, http://www.ciel.org/public-participation-wins-loses-un-climate-negotiations-bonn (accessed 10 October 2017) as well as the SBSTA discussions on L&D at COP23 in Bonn in November 2017.

58. Wallbott and Recio, 'Practicing human rights across scale'.

59. See for example, ‘Canada’s Second Submission on the Local Communities and Indigenous Peoples Platform’, 30 October 2017, https://perma.cc/YCM7-8RSR (accessed 12 April 2018).

60. Wallbott, ‘Indigenous Peoples in UN REDD Negotiations’, 8.

61. UNFCCC, Decision 1/CP.21, paragraph 136.

62. UNFCCC, Local communities and Indigenous peoples platform: proposals on operationalization based on the open multi-stakeholder dialogue and submissions, UN Doc. FCCC/SBSTA/2017/6, 25 August 2017, paragraphs 53.a-c.

63. Ibid., paragraph 36. For a discussion of states’ attempts to constrain the influence of Indigenous peoples in the UN, see Hasenclever and Narr, 'The dark side of the affectedness-paradigm'.

64. UNFCCC, Decision 2/CP.24, paragraph 1.

65. For relevant commentary, see Olivia Serdeczny, ‘Loss and Damage at COP23 – goals, roadblocks and detours’, Climate Analytics Blog, 20 November 2017 http://climateanalytics.org/blog/2017/loss-and-damage-at-cop23-disappointments-and-consolation-prizes.html.

66. UNFCCC, Decision 2/CP.19, paragraph 3.

67. UNFCCC, Terms of reference for the expert groups, subcommittees, panels, thematic advisory groups or task‐focused ad hoc working groups of the Executive Committee of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts, paragraph 16 https://unfccc.int/sites/default/files/resource/TOR general _expert groups_ver_22_Mar formatted.pdf (accessed 3 December 2018).

68. UNFCCC, Report of the Subsidiary Body for Implementation on its forty-fourth session, UN Doc. FCCC/SBI/2016/8, 26 August 2016, paragraph 162.

69. UNFCCC, Views on opportunities to further enhance the effective engagement of non-Party stakeholders with a view to strengthening the implementation of the provisions of decision 1/CP.21, UN Doc. FCCC/SBI/2017/INF.3, 28 April 2017, paragraph 25.

70. Ibid., paragraph 26.

71. UNFCCC, In-session workshop on opportunities to further enhance the effective engagement of non-Party stakeholders with a view to strengthening the implementation of the provisions of decision 1/CP.21, UN Doc. FCCC/SBI/2017/INF.7, 12 May 2017, para 37.

72. UNFCCC, Dialogues on Action for Climate Empowerment (ACE), http://unfccc.int/cooperation_and_support/education_and_outreach/dialogues/items/8941.php (accessed 10 October 2017).

73. Engage4Climate, ‘About CCEN’, https://engage4climate.org/about (accessed 10 October 2017).

74. Climate CoLab, ‘ECOS–Education, Communication and Outreach Stakeholders–a new UNFCCC Community’, https://www.climatecolab.org/contests/2017/shifting-attitudes-and-behavior/c/proposal/1333916 (accessed 10 October 2017).

75. UNFCCC Newsroom, ‘Launch of Largest Global Citizen Consultation on Climate and Energy’, 10 April 2015, http://newsroom.unfccc.int/unfccc-newsroom/launch-of-largest-ever-global-citizen-consultation-on-climate-and-energy (accessed 10 October 2017).

76. COP23 Presidency Secretariat, ‘Talanoa Dialogue – Everything You Need to Know’, https://perma.cc/H7C5-QX77 (accessed 8 April 2018).

77. UNFCCC, ‘The People’s Seat: Speak up on Climate change’ and the $TakeYourSeat during COP24 in December 2018, https://perma.cc/P8MH-QP8R (accessed 3 December 2018).

78. The video is available here: https://vimeo.com/304018764 (accessed 5 December 2018).

79. Climate Action Network, ECO – NGO Newsletter, COP24 – Winter 2018, Katowice, http://www.climatenetwork.org/sites/default/files/eco_05.12.18_.pdf (accessed 5 December 2018).

80. Nanz and Steffek, ‘Assessing the democratic quality of deliberation in international governance’, 378.

81. Ibid., 371.

82. Chimni, ‘Third World approaches to international law’, 15.

83. For relevant analysis of different perspectives on loss and damage, see Boyd et al., ‘A typology of loss and damage perspectives’, 723.

84. UNFCCC Convention, Article 3.2.

85. UNFCCC Convention, Article 4.4.

86. UNFCCC Convention, Preamble.

87. See above 84.8.

88. Carazo, ‘Contextual Provisions (Preamble and Article 1)’, 116.

89. Submission by Vanuatu on behalf of AOSIS, found in Intergovernmental Negotiating Committee, Negotiation of a Framework Convention on Climate Change, Elements relating to mechanisms, Vanuatu, Draft annex relating to Article 23 (Insurance) for inclusion in the revised single text on elements relating to mechanisms (A/AC.237/WG.II/Misc.13) submitted by the Co-Chairmen of Working Group II, UN Doc. A/AC.237/WG.II/CRP.8, 17 December 1991, 3, paragraph 1.4.

90. See for example AOSIS, Proposal to the AWG-LCA, Multi-Window Mechanism to Address Loss and Damage from Climate Change Impacts, 2008 http://unfccc.int/files/kyoto_protocol/application/pdf/aosisinsurance061208.pdf (accessed 10 October 2017).

91. The three negotiation groups were particularly vocal in pushing for a formal recognition of L&D in future treaty text at COP20 in Lima in 2014.

92. Vanhala and Hestbaek, ‘Framing Climate Change Loss and Damage in UNFCCC Negotiations’, 124.

93. Victor, ‘Toward effective international cooperation on climate change’, 96.

94. Dimitrov, ‘The Paris Agreement on Climate Change: Behind Closed Doors’, 6.

95. Hoffmeister and Huq, Loss and Damage in INDCs, 1.

96. Vanhala and Hestbaek, note 90, 112–113.

97. See for example, the work on L&D by ActionAid, CARE International, and Germanwatch. See also Schramm and Sändig, 'Affectedness alliances', in this collection, for relevant discussion of the potential of ‘affectedness alliances’ between Southern civil society organisations and Northern international NGOs.

98. See von Bernstorff, Hasenclever and See Sändig et al., 'Affectedness in international institutions' in the introduction to this collection.

Additional information

Notes on contributors

Patrick Toussaint

Patrick Toussaint is a PhD candidate in international law at the University of Eastern Finland and a Research Associate at the Institute for Advanced Sustainability Studies (IASS) Potsdam. His research focuses on critical approaches to international climate law, particularly in the context of loss and damage. He obtained an LL.M. in environmental law and policy from University College London (UCL) and a MSc in environmental technology and international affairs from the Diplomatic Academy of Vienna and Vienna University of Technology.