Whose ‘Loss and Damage’? Promoting the Agency of Beneficiary States
In: Climate LawSearch for other papers by Benoît Mayer in
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The discussions on loss and damage associated with climate change that opened up within the unfccc in recent years constitute the latest attempt of developing states to obtain something akin to compensation from major greenhouse gas emitters for the adverse social impacts of climate change. These discussions generally contemplate a mechanism financed by developed states that would provide direct support to individuals, corporations, and governments in developing countries (‘vertical’ approach), for instance, through insurance. This article argues that, for practical as well as normative reasons, a loss-and-damage mechanism should instead support vulnerable developing states, in a states-to-states ‘horizontal’ approach. Accordingly, financial support would be provided to developing states that incorporate vulnerable populations and are responsible for protecting them. Three sets of arguments are developed in support of this proposition. First, attributing loss and damage at the individual level is particularly challenging, whereas horizontal approaches allow consideration of probabilistic harm and compensation through bundle payments. Second, horizontal approaches are more suitable for pursuing goals such as economic efficiency, the reduction of loss and damage, the creation of an incentive for climate change mitigation, and broader goals of social justice. Third, vertical approaches go against prevailing principles of international law and involve unjustified interference in the domestic affairs of developing states.
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12
Buchner et al., supra note 5, at iv.
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22
Bodansky, supra note 11, at 528.
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35
Ian Brownlie, State Responsibility (Oxford: Clarendon Press, 1983), at 199.
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52
Stone and Allen, supra note 50. See also e.g. Pardeep Pall et al., ‘Anthropogenic Greenhouse Gas Contribution to Flood Risk in England and Wales in Autumn 2000’, 470(7334) Nature 382 (2011), proposing a ‘probabilistic event attribution framework’; Huggel et al., ‘Loss and Damage Attribution’, 3(8) Nature Climate Change 694 (2013); Myles Allen et al., ‘Scientific Challenges in the Attribution of Harm to Human Influence on Climate’, 155 University of Pennsylvania Law Review 1353 (2006).
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53
See e.g. Pall et al., supra note 53, at 385 (arguing that, ‘[b]y demonstrating the contribution of [greenhouse gas] emissions to the risk of a damaging event, [the science of weather-event attribution] approach could prove a useful tool for evidence-based climate change adaptation policy.’).
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54
Huggel et al., supra note 53, at 695. See also Hulme, O’Neill and Dessai, supra note 51, at 764–765 (on ‘uncertainty and subjectivity’); ipcc, srex, supra note 48, at 8.
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56
Pall et al., supra note 53, at 385.
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74
See Buchner et al., supra note 5, at iv, estimating that adaptation receives us$4.4 billion per year. By contrast, net official development assistance reached us$134.8 billion in 2013 (and it was complemented by a substantial amount of private aid). See oecd, ‘Aid to developing countries rebounds in 2013 to reach an all-time high’, available at <www.oecd.org/newsroom/aid-to-developing-countries-rebounds-in-2013-to-reach-an-all-time-high.htm>.
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76
See, for instance, Pall et al., supra note 53, at 385.
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78
Robinson, supra note 78, at 798. See also, e.g., David Kaye and Mikel Aickin, ‘A Comment on Causal Apportionment’, 13(1) Journal of Legal Studies 191 (1984).
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81
Farber, supra note 80, at 1256.
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86
Robinson, supra note 78, at 781. See also William M. Landes and Richard A. Posner, ‘Tort Law as a Regulatory Regime for Catastrophic Personal Injuries’, 13(3) Journal of Legal Studies 417 (1984).
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93
Farber, supra note 83, at 1654.
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94
Ibid., at 1608.
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106
Submission by the United States (2012), supra note 81, at 2.
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109
Landes and Posner, supra note 87, at 434.
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113
Landes and Posner, supra note 87, at 434, noting that ‘The problem of causal uncertainty and long delay between accident and full-blown injury could … be solved by moving toward a system where the accident victim sues and obtains a judgment before his injury is full blown.’
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116
See in particular J. E. Stiglitz, Globalization and its Discontents (New York: Norton, 2002).
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117
See e.g. Fan Shenggen (ed.), Public Expenditures, Growth, and Poverty: Lessons from Developing Countries (Baltimore: Johns Hopkins University Press, 2008). This renewed confidence in the role of the state is epitomized by the recovery packages adopted by some states in response to the 2009 financial crisis.
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121
Crawford, supra note 120, at 72. Thus, Article 2(7) of the un Charter prohibits any intervention ‘in matters which are essentially within the domestic jurisdiction of any state.’
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124
Hulme, O’Neill and Dessai, supra note 51, at 765.
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125
Submission by the United States (2012), supra note 81, at 2.
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128
Buchner et al., supra note 5, iv, showing that, out of us$4.4 billion per year, only about us$65 million are distributed through specific multilateral funds, whereas us$3.6 billion are channelled by bilateral institutions.
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131
See Gregory White, Climate Change and Migration: Security and Borders in a Warming World (New York: Oxford University Press, 2011). See generally Mike Hulme, ‘Commentary and Response: Climate Refugees: Cause for a New Agreement?’, 50(6) Environment 50 (2008).
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135
Mayer, supra note 128.
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143
A. Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005).
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Whose ‘Loss and Damage’? Promoting the Agency of Beneficiary States
In: Climate LawSearch for other papers by Benoît Mayer in
Current site
Google Scholar
PubMed
The discussions on loss and damage associated with climate change that opened up within the unfccc in recent years constitute the latest attempt of developing states to obtain something akin to compensation from major greenhouse gas emitters for the adverse social impacts of climate change. These discussions generally contemplate a mechanism financed by developed states that would provide direct support to individuals, corporations, and governments in developing countries (‘vertical’ approach), for instance, through insurance. This article argues that, for practical as well as normative reasons, a loss-and-damage mechanism should instead support vulnerable developing states, in a states-to-states ‘horizontal’ approach. Accordingly, financial support would be provided to developing states that incorporate vulnerable populations and are responsible for protecting them. Three sets of arguments are developed in support of this proposition. First, attributing loss and damage at the individual level is particularly challenging, whereas horizontal approaches allow consideration of probabilistic harm and compensation through bundle payments. Second, horizontal approaches are more suitable for pursuing goals such as economic efficiency, the reduction of loss and damage, the creation of an incentive for climate change mitigation, and broader goals of social justice. Third, vertical approaches go against prevailing principles of international law and involve unjustified interference in the domestic affairs of developing states.
| All Time | Past 365 days | Past 30 Days | |
|---|---|---|---|
| Abstract Views | 584 | 164 | 16 |
| Full Text Views | 196 | 5 | 0 |
| PDF Views & Downloads | 130 | 12 | 0 |
