ODVV Interview: Communities with few resources...
The extreme weather events of the past year evidenced that climate change continues to be a pressing issue requiring urgent attention. The devastating floods in Pakistan that displaced some 33 million people, China’s worst heatwave in decades, tropical storms in the Philippines, Hurricane Ian in the United States and persistent sandstorms in the Middle East were some of the incarnations of a rapidly warming planet compounded by unregulated industrial activity.
The 2022 United Nations Climate Change Conference hosted by Egypt was a landmark event that brought together hundreds of world leaders, scientists and experts to deliberate on how governments will be tackling the climate emergency and reinforce their commitment to slashing greenhouse gas emissions. In what many observers described as a breakthrough, the Sharm el-Sheikh summit resulted in an agreement to establish a loss and damage response fund to assist the developing countries most susceptible to the impacts of the climate change.
Yet, despite the strides being made to address the simmering crisis, climate change continues to be a human rights challenge disproportionately burdening the poorest countries, minority communities, women, and people in rural areas. Last year, the United States alone incurred $165 billion in damages resulting from climate-induced disasters. The top five greenhouse gas-emitting nations have aggregately caused the world $6 trillion in economic losses in 2022. Scholars agree that the most fundamental human rights, ranging from the right to housing to right to food are undermined as the global warming worsens.
David Hunter is a professor of international and comparative environmental law at American University’s Washington College of Law. He is a member of the board of directors of the Environmental Law Alliance Worldwide-US and a member of the Organization of American States’ Expert Group on Environmental Law. He has written extensively on environmental law and the interplay between climate change and human rights.
Organization for Defending Victims of Violence has talked to Prof. Hunter to discuss the latest trends in litigating the climate emergency, the effects of climate change on the human rights of vulnerable communities and the role of the developed countries in alleviating the costs of the global warming.
Q: Experts say as the climate crisis festers, there’s an acute need for increased investment in mitigation and adaptation. Ramping up business investment in climate adaptation efforts to $1.8 trillion could generate $7.1 trillion in total net benefits by 2030. Do you believe the developed countries are prepared to make this investment and ensure future climate catastrophes are averted? Is dealing with the climate emergency being seen as a priority?
A: I believe the developed countries, including the United States take the climate emergency seriously and see it as a priority—but only one of many priorities. Currently, the pandemic, the Russian invasion of Ukraine, the rise of authoritarian regimes in many parts of the world, and the growing wealth gap between the rich and poor nationally and internationally are all high priorities vying for attention and making claims to scarce public financial resources.
Moreover, even within climate change priorities, mitigation remains a higher priority for many developed countries when compared to adaptation or compensation for loss and damages. The net result is that governments are not going to provide $1.8 trillion dollars in climate finance. To come close to that number we must leverage private sector investments. While the private sector will certainly contribute significantly to climate mitigation as well as the energy transition, new technologies, government subsidies, national mitigation requirements, etc. both require and provide incentives for investment in mitigation. Getting the private sector to invest in adaptation is equally important, but less likely absent a focus on private sector responsibility for climate-induced damages. Fortunately, an increasing number of lawsuits are advancing which may open the playing field to expanded responsibility of the private sector.
Q: According to the World Economic Forum, agri-food systems account for a third of greenhouse gas emissions, more than 70 percent of freshwater use and some 80 percent of tropical deforestation and habitat loss. What are the amendments that need to be made to our food and water systems so that their disruptive impact on the nature is lessened, extreme weather events are avoided, and malnutrition is also addressed?
A: I am not an expert in this and have only general comments. Shifting toward less export-driven agriculture and more local foods is one step, as is a cultural shift toward eating less beef and pork. The current and relatively recent focus on the emissions from land-use activities should yield new approaches to curtailing greenhouse gases from agricultural production. Measuring and reporting on agricultural use of water accompanied by an effort to reflect better the true costs of water and of land conversions is important, as well.
Q: According to the United Nations experts, the G20 countries are responsible for 78 percent of greenhouse gas emissions over the last decade. As a result of this injustice being perpetrated by rich countries and major corporations, the poorest countries are paying the highest price for the climate change. How is it possible to bridge these gaps and ensure the climate emergency doesn’t lead to further dispossession and impoverishment of the underdeveloped nations?
A: To be sure, the G20 countries are primarily responsible for the climate change emergency. And they also have relatively more resources available to address climate change. This disparate contribution to the problem as well as in wealth underlies the Principle of Common But Differentiated Responsibilities, [which is] Principle 7 of the Rio Declaration on Environment and Development, and also included in the UN Framework Convention on Climate Change.
This principle was an important organizing principle for the climate regime as it set forth the terms under which all countries agreed to sit at the table to discuss climate change. All countries would participate in a spirit of global partnership but given the contribution they made and the resources they command, wealthier countries would first demonstrate their commitment by taking actions to reduce greenhouse gases first and would pay the full incremental costs of developing country efforts to comply with the climate regime. Equity was another principle included explicitly as a guiding principle in the climate regime, in recognition of the gap in development levels.
Wealthier countries are also likely to be more resilient and thus more able to adjust to climate change and to reduce climate impacts. So, that income disparity will increase due to weather events. One necessary response is that the G20 needs to provide real resources to address loss and damages of developing countries. The G20 also needs to force fossil fuel companies and other private sector beneficiaries to contribute to compensation from climate-induced events.
Q: We hear a lot that the right to food, development, self-determination, sanitation and adequate housing is being denied to millions of people worldwide as a consequence of climate change. Why is climate change being considered a threat to human rights? If we perceive climate change from a human rights perspective, then is the response a political one?
A: Recognizing the human rights implications of climate change raises the profile of climate impacts, makes room for additional voices in the climate talks, and shifts the focus more to supporting victims and damages from climate change. Having said this, I’m not sure that I know what you mean by making climate change political. In my view, I don’t think it’s governments alone driving the dialogue toward human rights. I think it’s civil society advocates, acting in alliance with island states and other vulnerable countries and Indigenous peoples. The human rights perspective is also important for emergent legal arguments. Recent cases are using human rights as a quasi-form of enforcement for the climate change regime.
Q: By 2020, a total of 1,550 climate litigation cases were filed in 38 countries to hold governments and corporations accountable over their role in exacerbating the global warming, contributing to air pollution and destroying the natural environment. Is this a promising trend indicating that judicial systems across the world are treating environmental degradation more seriously?
A: Yes, this is a very promising trend. It does reflect more active judiciaries. Some other trends that are contributing to the rise in climate litigation globally, include [the fact that] judges share environmental information and discuss the challenges raised by complex environmental cases in a judicial network created by Brazilian High Court Judge Antonio Herman Benjamin, who until recently was chair of the World Commission on Environmental Law. The growing link between human rights and climate change vests individuals and communities with potential claims for legal actions. Also, horizontal networks of environmental lawyers, particularly the Environmental Law Alliance Worldwide support one another in bringing litigation by sharing information and legal strategies across borders.
The structure of the Paris Agreement with Nationally Determined Contributions is structured as being “non-binding” so that the NDCs cannot be enforced by one state against another state, but the NDCs may create mandatory obligations for a state under domestic law vis-à-vis their citizens; and the factual basis for climate-based claims is strengthening—for example, many weather events are getting worse, are more frequent, and are now scientifically attributable to climate change.
Q: Amnesty International has reported on the dilemma of environmental racism, noting that the effects of climate change and pollution related to the use of fossil fuels run along ethnicity lines, as well, and that environmental policy-making tends to occasionally discriminate against people of color and other minority communities. Is this a serious threat? How do you think it’s possible to be tackled?
A: Environmental racism is clearly a significant problem in, for example, the siting of industrial plants in the United States where it has been demonstrated that communities of color are subject to a disproportionate toxic burden. Politically marginalized ethnic groups are also discriminated against in many other countries, where distant government officials from a majority ethnic group may make decisions taking the resources from another ethnic group or siting environmentally harmful activities within minority territories. Many countries have also failed to protect the rights of Indigenous peoples to block any use of their territory without first getting their free, prior informed consent.
The current US administration has made equity a significant organizing theme for the entire government, requiring for example that 40 percent of infrastructure funding go to minority communities. It has also strengthened the Environmental Protection Agency’s Office for Environmental Justice, which has the mandate to address environmental justice. Because greenhouse gas emissions mix around the atmosphere no matter where they are located, from a climate change perspective it does not make that much sense to talk about disproportionate impacts on minority neighborhoods. GHG emissions could all occur in a small place, and it is unlikely that this would make any difference in how climate changed in that area when compared to the climate change impacts faced by another area with no emission sources.
Several caveats need to be provided. First concentrated emissions of some GHGs could lead to disproportionate levels of asthma or other acute diseases. Second, minority communities that are economically or politically marginalized may find it more difficult to adapt to climate change—many studies show that communities with few resources or political voice may be less resilient to the changes wrought by climate change.