Front Burner - The fight for ‘climate change reparations’

Episode Date: March 17, 2022

The most recent report from the Intergovernmental Panel on Climate Change is scathing: it lays out the stark divide between rich and poor nations’ ability to withstand global warming’s worst effects. This, just months after COP26 in Glasgow, where many delegates and activists were asking rich nations most responsible for greenhouse gas emissions to pay for the losses and damages that many developing nations are already experiencing from climate change. Demands for a specific compensation fund were not met. Today, Canadian human rights lawyer Payam Akhavan is here to explain how some small island nations are looking at how they can use international law to make rich countries pay up. He’s a senior fellow at Massey College at the University of Toronto, and a former UN war crimes prosecutor who has served on tribunals investigating genocide in the former Yugoslavia and Rwanda. Now, he’s helped establish the Commission of Small Island States on Climate Change and International Law, and is serving as the group’s legal counsel.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hi, I'm Jamie Poisson. In Tuvalu, we are living the realities of climate change, sea level rise. So there is this video that I saw last November.

It's Simon Kofay, the foreign minister of the Pacific Island nation of Tuvalu. And he's giving a speech to the United Nations Climate Conference, COP26. And at first it looks pretty standard. Guy in suit, in front of a blue background, with a couple of UN and Tuvaluan flags. Dramatic music plays in the background. But then the camera zooms out and you see Kofay isn't in Glasgow with the other delegates. He's standing in his suit and tie, knee deep in the seawater that's gradually rising around the island. No matter if we feel the impacts today, like in Tuvalu, or in 100 years, we will all still feel the die effects of this global crisis one day.

Kofi was one of a whole bunch of delegates and activists at COP26, calling for the rich nations most responsible for greenhouse gas emissions to pay for the losses and damages that many developing nations are dealing with because of climate change. It's a concept known as climate reparations. Climate finance, the frontline small island developing states, declined. There was Nia Motley, the Prime Minister of Barbados. Failure to provide the critical finance and that of loss and damage is measured, my friends, in lives and livelihoods in our communities. This is immoral and it is unjust.

And Vanessa Nakate, a 25-year-old activist from Uganda. Historically, Africa is responsible for only 3% of global emissions. And yet Africans are suffering some of the most brutal impacts fueled by the climate crisis. But despite those impassioned speeches, and despite the fact that climate reparations have already been discussed at COP for years, no deal on a losses and damages fund was reached in Glasgow. So now, some small island nations are hoping to take matters into their own hands. They're coming together to look at how they can use international law to make rich countries pay up. And they've got what could be strong new evidence to build a case.

A recent, scathing report from the Intergovernmental Panel on Climate Change, which shows a stark divide between rich and poor nations' ability to withstand global warming's worst effects. I've seen many scientific reports in my time, but nothing like this. Today's IPCC report is a netless of human suffering and a damning indictment of failed climate leadership. Today, I'm speaking to the renowned Canadian human rights lawyer, Payam Akhavan. He's a senior fellow at Massey College at the University of Toronto and a former UN war crimes prosecutor who has served on tribunals investigating genocide in the former Yugoslavia and Rwanda, among other major cases. And now he's helped establish the Commission of Small

Island States on Climate Change and International Law and is serving as the group's legal counsel. Hello, Payam. Thank you so much for making the time. It's such a pleasure to have you on. Thank you for inviting me. So I touched on this in the introduction a little bit, but I wonder if you could just explain to me in simple terms, the concept of climate reparations. If we look at international environmental law, there's a basic principle that the polluter pays. If you pollute, you pay. And there is a principle that a state must exercise due diligence to ensure that activities on its territory do not cause harm to others. There was a famous case in 1938, an arbitration between Canada and the United States

involving a smelter in the town of Trail in British Columbia that was spewing sulfur dioxide fumes that were being carried by the wind across the boundary and causing environmental harm to forests and farms in Washington state in the United States. And the Arbitral Tribunal basically established the principle that Canada had to pay reparations to the United States because of the damage that this pollution was causing. So the question is why we cannot apply the same principle to climate change, where we have major polluters who are responsible for a disproportionate share of the loss and damages that are being caused as a result of choices, choices not to sufficiently mitigate the emission of greenhouse gases. So that's what the idea of climate reparation is, that climate change is not a natural process. induced process and that the major polluters have to begin to bear responsibility unless

they're willing to radically mitigate their carbon footprints. I want to come back to how you think it may be possible to go about doing that. But first, I remember at the most recent COP summit in Glasgow last November, many developing countries were pushing for this, for big loss and damage funds to be created for developing countries. And many wealthy countries, including Canada, ended up rejecting that proposal. And so what was their reasoning for saying no? What was their reasoning for saying no? Industrialized countries understandably want to have a negotiating process. And the Paris Agreement refers to nationally developed contributions. So the scheme of the UN Framework Convention on Climate Change is largely voluntary. And given the complexity of

the issues, one can understand that this isn't something that you can just litigate. States need to sit around the negotiating table, talk to each other, and figure out how it's possible for the international community as a whole to come up with solutions. But I think the problem is that the climate vulnerable states, in particular small island states, are frustrated that the major polluters have not gone nearly far enough in reducing and eliminating greenhouse gas emissions. I just heard John Kerry trying to spin this as a good thing. It isn't. Why not? Well, there is some agreement, isn't there?

Well, I'm talking about the most vulnerable people on the planet. They came here expecting to hear something being done about loss and damage. And all we got is a dialogue to talk more about it. That's absolutely unacceptable. And of course, for small island states, climate catastrophe is already here. Some of the small island states like Tuvalu, Marshall Islands, Maldives, are literally going under the water. They will disappear in the foreseeable future. And since 1990, the small island states have been talking about loss and damages.

The UN Framework Convention was adopted in 1992 at the Rio Earth Summit. We cannot be complacent unless the agreements reached here are accompanied by real commitments to significant change. Change, of course, indeed, for the human species. for the human species. In my view, Your Excellencies, we simply are headed for a moment in the 21st century where the condition of our species may become terminal. So COP26, which COP stands for Conference of Parties to the UN Framework Convention, was the 26th year in which the state's parties refused to take seriously the question of loss and damages.

So I think that small island states are tired of vague commitments, empty promises. promises. This is why they're now talking about invoking international law in support of their claims for loss and damages. And as one of the prime ministers told me, we have nothing to lose. Our countries are literally going to disappear. We're going to become extinct. Okay, and then how are they going to go about doing that? Let's talk about the legal path here, right? And maybe we could start first with this commission of small island states that you're a part of. This is where you come into the story, right? The commission of small island states was established on the first day of COP26 and it was signed, the agreement was signed by the prime ministers of Antigua and Barbuda from

the Caribbean and Tuvalu in the South Pacific. And although it's a bilateral agreement, it's open to all small island states to join. And the basic mandate of the commission is to contribute to the progressive development of international law as it relates to climate change, and in particular, the question of loss and damages. of loss and damages. So I think we need to see this in a broader framework of not simply litigation where you go and you sue a particular person in court, but we now stand poised at a historical juncture. The latest report of the Intergovernmental Panel on Climate Change was such that the UN Secretary General said bluntly, delay means death. So the idea of developing international law, whether through standard setting by the United Nations International Law Commission, or requesting advisory opinions from international courts and tribunals who can give authoritative pronouncements of what are the principles of international law that should guide us in the coming years as it becomes increasingly clear that

continuing business as usual is no longer an option. So I think that international law, especially if the Western liberal democracies really believe in a rule-oriented international order, well, then we should be guided at the very least by international law in the negotiations at future meetings of the conference of parties. But beyond that, the statement of authoritative international law by a court or tribunal could also become the basis at some point in the future if the major polluters don't change their behavior for small island states than to bring claims against specific states. And one would hope that it doesn't come to that. One would hope that the states, which are the major polluters, will act in good faith. And I just want to maybe emphasize that we often say that we're all in this together.

Yes, it's true. We as a world community are all in this together. But some are much more culpable than others. And even the UN Framework Convention in 1992 recognized the concept of common but differentiated responsibilities, that some states have far greater responsibility in addressing issues of global warming. I'm just trying to sort of wrap my head around the legal paths here. So when you say that international law would at least govern negotiations, and then you talk about how an international body, maybe like the International Court of Justice, could offer some insight here. I just wonder if you could give me examples of how that would work. Well, a first step in developing international law to address climate change would be to request an advisory opinion

from international courts and tribunals who could then spell out what are the principles and rules that define the obligations of states. And this is certainly an emerging area of international law, which is going to go through dramatic development in the coming years as the climate crisis worsens. So there are two courts which are potentially relevant. The first is the International Court of Justice based in the Hague, which is the principal judicial organ of the United Nations. And the Pacific state of Vanuatu has undertaken an initiative to request an advisory opinion from the International Court of Justice, except that the procedure of the court is that Vanuatu has to go through the United Nations General Assembly to request that advisory opinion, which requires a majority vote among the

more than 190 members of the United Nations. And one can imagine that that could end up being a very politicized process, and there are no guarantees that one could get a majority vote. But there is another tribunal called the International Tribunal for the Law of the Sea, which is based in Hamburg, Germany. It was established by the UN Convention on the Law of the Sea, which was adopted in 1982. And the UN Convention, among many issues that it addresses, has a part 12 on protection and preservation of the marine environment. And of course, the warming of the oceans, acidification, extreme weather events, rising sea levels, all of those really have to do with the oceans, in particular for small island

states. And the Tribunal for the Law of the Sea, unlike the International Court of Justice, does not require a majority vote of the General Assembly. It's commission has, that it can directly request such an advisory opinion from the Law of the Sea Tribunal. I will say I have never heard of the Law of the Sea Tribunal until right now. But like you said, and I just want to make sure I understand this properly, the commission doesn't necessarily want to take that route, right? They want to sit down and negotiate at a table with other countries in the world, right? Yes. And as I explained earlier, the reason why they established the commission is because

of their frustration. They are tired of empty promises. 26 years into the COP process under the UN Framework Convention, they've reached the point where their countries are disappearing. They're going to go under the sea. And some of the speeches made by the leaders of small island states were quite stark. The Prime Minister of Barbados said that this is a death sentence for us. For those who have eyes to see, for those who have ears to listen, and for those who have a heart to feel, 1.5 is what we need to survive. Two degrees, yes, SG, is a death sentence for the people of Antigua and Barbuda,

for the people of the Maldives, for the people of Dominica and Fiji, for the people of Kenya and Mozambique, and yes, for the people of Samoa and Barbados. We do not want that dreaded death sentence. The president of Palau said, you may as well bomb us because we're going to disappear, we're going to become extinct. We see the scorching sun is giving us intolerable heat, the warming sea is invading us, the strong winds are blowing us every which way, our resources are disappearing before our eyes, and our future is being robbed from us.

Frankly speaking, there is no dignity to a slow and painful death. You might as well bomb our islands instead of making us suffer only to witness our slow and fateful demise. In Tuvalu, in Kiribati, in a number of these countries, the governments are making plans for the resettlement of their entire population. ringing the alarm bell and telling us that political leaders are asleep at the switch as we are going over the precipice of self-destruction. So this is really a cry from these small island states for world leaders to wake up and take seriously the issue of loss and damages. And of course, in the best of all worlds, we would be taking mitigation and elimination so seriously that loss and damages would become secondary. I'm going to go. entrepreneurs through angel investment and industry connections. household income. That's not a typo, 50%. That's because money is confusing. In my new book and

podcast, Money for Couples, I help you and your partner create a financial vision together. To listen to this podcast, just search for Money for Couples. You mentioned that this is an evolving field of law. And I wonder if you could just talk to me a little bit about how a new field of research called attribution science is playing a role here. I gave you the example of noxious fumes coming across the border from one country to the other and causing pollution.

Or one can imagine dumping toxic waste off the coast of a country in its territorial sea. In such a scenario, attribution is really relatively straightforward. We know who the polluter is and what damage has been caused as a result of that pollution. So obviously, climate change is somewhat more diffuse. The sort of link between cause and effect is not as immediately apparent. The gases go very high into the atmosphere. The effects are very often felt across time and space. So from that point of view, one of the big challenges has been to determine how you can attribute liability for loss and damage caused by climate change. So attribution science has made significant progress in achieving just that, in being able to indicate perhaps not with, you know, 100% scientific accuracy, but with

reasonable accuracy to try and attribute liability for the loss and damages arising from climate change to particular sources of pollution. And I think that that science is only going to become more sophisticated and genocide cases in history. And I'm wondering how those experiences in places like the International Criminal Court and the International Court of Justice inform how you're looking at this issue of climate reparations now? That's a good question for which perhaps I don't have an easy answer. Perhaps I'm just a profoundly misguided person who's trying to, you know, put out all the fires that one sees around the world. But I think that climate change is a game changer. I've dealt with crimes against humanity,

genocide in former Yugoslavia, Rwanda, and of course, we're horrified at the scenes of human suffering as we are today by the terrible events unfolding in Ukraine, the persecution of the Rohingya and what have you. And we've coined this term genocide, which is about mass murder, mass destruction of entire human groups. And the term that's most appropriate for climate change is omnicide. Omnicide means basically the mass destruction of humankind. So in a sense, I think that I have a responsibility. We all have a responsibility. I want to be able to tell my children and my grandchildren that I did what I could to try and save the planet from burning, literally. So there is a sense of urgency,

the same sense of urgency that we have when we see refugees who are fleeing war, who are suffering, innocent people who are being killed. If that moves us to do something, well, then the collective extinction of humankind should certainly move us to try and save our species. And I think here about what Arnold Toynbee famously said, that civilizations aren't murdered, they commit suicide. And that's exactly what we're doing. We're sleepwalking into our own destruction so each and every one of us have to do what we can to wake up our political leaders

our business leaders civil society and what have you in order to change course while there is still time. But I want to end by saying this. There is a reality that we're dealing with. We live in an inextricably interdependent world community. And I remember in my student days, we would read Marshall McLuhan, who spoke about the global village in a very romantic sense. Well, the global village now is no longer romantic. It's an inescapable reality. And climate change has made planetary politics not some naive, utopian ideal, but an absolute necessity for our survival. So I have confidence that sooner or later, we will be left with no choice but to

radically transform international law and make it binding and effective through strong global institutions, because we will have no choice. So we need to think now, are we going to bring about the changes that are required for our collective survival? Or are we going to bring about the changes that are required for our collective survival, or are we going to suffer unprecedented catastrophes which leave us with no choice in order to bring about those changes? And I think any person with a shred of wisdom would agree with me that we should make these changes now. We should do it voluntarily as an act of collective self-preservation. Payam Akhavan, thank you so much for this. Thank you. Thank you.

All right, that is all for today. Thanks so much for listening. I'm Jamie Poisson. Talk to you tomorrow.