Insight: a human rights approach to loss and damage
This is adapted and republished from a briefing prepared for a client.
The agreement at COP27 to establish a Loss and Damage Fund increased global attention to this issue, alongside the primary focus on climate mitigation. The concept of loss and damage has been broadly understood in the context of climate negotiations as the impacts of climate change which communities are unable to mitigate, or to which they cannot adapt.
There are three common distinctions in the discussion around loss and damage:
Loss and Damage vs loss and damage. The former (capitalised) refers to the political discussion on funding, following the establishment of the Warsaw Mechanism on Loss and Damage in 2013. The latter (sometimes “losses and damages”) refers to the scientific concept of harms and risks caused by climate change, incorporating permanent and irreversible changes (losses) and those which could be reversed or alleviated (damages).
Sudden onset vs slow onset. The climate crisis causes both types of harms, which require different forms of remedy.
Economic vs non-economic. Much of the discussion of loss and damage has historically centred around economic costs, but there has been growing recognition of harms to ways of life, cultures, health, and more. This is captured in the concept of non-economic loss and damage, which the UNFCCC has categorised in terms of “life, health, displacement and human mobility, territory, cultural heritage, indigenous/local knowledge, biodiversity and ecosystem services”.
However, there continues to be no official or universal definition of loss and damage. This is the time when it needs to be defined more precisely, and grounding it in human rights would be one important way of doing so. This briefing suggests five ways that loss and damage could be underpinned by human rights.
Loss and damage involves “a litany of human rights impacts”
In the context of climate change, we cannot speak of one without the other
Harms resulting from climate change almost inevitably involve human rights impacts. This is true of sudden onset events such as flooding – which may threaten, among others, the right to life, adequate housing, food, water and sanitation, education, and health – as well as the insidious effects of slow onset events, which could change the entire context in which people lay claim to their rights.
In his first substantive report, the UN Special Rapporteur on the promotion and protection of human rights in the context of climate change characterised loss and damage as a“litany of human rights impacts”.
In this regard, he outlined a catalogue of physical disasters which may impact human rights, including flooding, sea level rise, the impact of increased carbon dioxide concentrations, droughts, and extreme heat; as well as the impact of economic losses and climate-induced displacement.
Human rights and loss and damage are, in some sense, two different narratives to describe the same phenomena. Serious human rights impacts linked to climate change are all but certain to continue and intensify. Moreover, the secondary impacts, including political backlashes to mass displacement and the consequences of worsening economic deprivation, will likely create human rights chain reactions that are impossible to predict.
In these and other ways, climate-related loss and damage is already inseparable from human rights harm. This entanglement is only likely to deepen. Increasingly, we should use both framings together to describe the impacts.
A human rights approach refines our analysis of loss and damage, particularly as it affects human life
Considering loss and damage from the perspective of human rights helps us to be more precise and specific in defining the impact and gauging how to respond. Three examples illustrate this point.
First, human rights put the human at the centre – and thereby offer a way of isolating the threats to human flourishing within a wider contextual analysis. This need not be to the exclusion of addressing other forms of harm, such as to the natural environment or to infrastructure, but it enables a focus on the violation of specific rights held by specific people.
Second, human rights provide not only a way of describing the problem but a set of agreed normative standards to guide the response. Whereas the language of loss and damage is a way of describing the harm, the human rights framework articulates the standards which should be protected in the context of addressing those harms. In this sense, human rights offer an enabling framework to address aspects of loss and damage.
Third, the human rights concept of intersectionality sheds light on the vulnerabilities of particular people in the context of loss and damage. The UN Special Rapporteur wrote in his 2022 report:
“The intersection of gender with race, class, ethnicity, sexuality, indigenous identity, age, disability, income, migrant status and geographical location often compound vulnerability to climate change impacts, exacerbate inequity and create further injustice”.
This is a crucial lens of analysis to ensure that the most vulnerable people are protected in a way that takes their full context into account.
A human rights analysis ensures a focus on protection and recovery, not only economic compensation
This is an important safeguard against more transactional approaches
While the loss and damage discourse originates in a call for compensation for the economic impacts borne by countries experiencing the worst climate harms, this is not the full story.
A grounding in human rights can help to safeguard loss and damage from an overly transactional approach whereby wealthy countries might consider it exclusively in economic terms. Human rights can help us to consider aspects such as recovering what has been lost and protecting what is at risk.
Human rights especially provide an important framework for understanding and articulating elements of non-economic loss and damage, which could otherwise be construed as somewhat enigmatic.
The UNFCCC categories provide a starting point for understanding the scope of non-economic loss and damage – life, health, displacement and human mobility, territory, cultural heritage, indigenous/local knowledge, biodiversity and ecosystem services – but these are only indicative. Others have drawn attention to psychological impacts such as anticipatory grief and the experience of “solastalgia”.
While no single framework is adequate to the task of encompassing and addressing all these impacts, the discourse of human rights provides further ways of unpacking them – including in terms of economic, social, and cultural rights such as the right to an adequate standard of living and the right to health, as well as the rights set out in the UN Declaration on the Rights of Indigenous Peoples.
But in addition to these specifics, the overall logic of human rights is about protecting and fulfilling rights rather than only providing compensation for their loss – it is a mandate for protection, restoration, remedy, and rehabilitation. These aspects are a vital counterpart to the focus on economic compensation.
In this regard, the framework of cultural rights has been somewhat neglected and merits mention. The UN Special Rapporteur in the field of cultural rights wrote starkly in her report in 2020:
“The climate emergency is the greatest of many contemporary threats to cultures and cultural rights around the world. The damage that it can and will do is fast-growing, widespread, long-term and potentially existential. It can wipe out centuries of human cultural achievement and render ongoing cultural practices virtually impossible in the future.”
Entire ways of life are under threat, particularly in the context of the loss of territory. This includes the deep threats to cultural heritage, in tangible forms and in terms of knowledge and practice.
Such destruction is not only a violation of cultural rights in itself; it also threatens to deprive us of forms of knowledge – including indigenous traditions – that should be considered as vital resources in addressing the climate crisis. Addressing these threats from the perspective of cultural rights has the potential to create a virtuous circle in which such knowledge could and should be highly prized.
Human rights principles provide a mandate for additional financing to protect development budgets
This should now be a global human rights priority
The basic idea underpinning loss and damage finance is that it will provide stable additional funding for climate-related harms that does not put unsustainable pressure on domestic budgets and create new debt traps. There is a clear basis for this in the UN Charter, under the duty of international co-operation. However, there is also a clear and well-defined mandate in human rights which lends weight to this demand.
It is a core principle in the International Covenant on Economic, Social and Cultural Rights (ICESCR) that the state should take steps towards the progressive realisation of these rights to the “maximum of its available resources”.
Where governments are compelled to expend resources on addressing climate-related harms and thereby incur higher (and more costly) debt, this reduces the resources available for the fulfilment of economic, social, and cultural rights – including building long-term resilience to climate-related harms. Only with the guarantee of separate funding for loss and damage are governments able to ringfence budgets for economic development and fulfilling economic, social, and cultural rights.
Within the human rights system, there has been a longstanding effort led by African states to address the inequality between states through the concept of a “right to development”. This idea has lost its original momentum and has been somewhat co-opted by China, but an aspiration remains from many so-called Global South countries that the human rights system should be used to address historic inequalities – including those with their roots in colonialism.
The Sixth Assessment Report (AR6) included a first acknowledgement within the IPCC process that present-day climate harms can be traced back to colonialism, while the UN Special Rapporteur on human rights and climate change noted the concept of “atmospheric colonization” as a way of describing the extreme mismatch between emitters of greenhouse gases and those experiencing the worst climate impacts.
Loss and damage finance will be an important test of the principles of international solidarity and the progressive realisation of economic, social, and cultural rights, as well as Global South demands for dealing with the extreme inequalities resulting from colonialism.
Estimates of the economic costs of loss and damage in developing countries range from $290bn to $580bn by 2030, and $1-1.8tn by 2050, vastly outweighing the GDP of many poorer countries. By comparison, total global spend on Overseas Development Assistance (ODA) reached an all-time high of $204bn in 2022. Demanding international solidarity and decisive action to increase fiscal space for countries experiencing the most extreme climate impacts should be a central priority of the global human rights agenda.
The human rights system provides important mechanisms to respond
We need to use them to the maximum extent possible
In an open letter ahead of COP27, UN High Commissioner for Human Rights Volker Türk wrote:
“The adverse effects of climate change can violate human rights, requiring access to justice and an effective remedy for those affected. Equitable, flexible and accountable mechanisms to address climate change-related loss and damage, now and in the future, are a climate justice imperative”.
The norms and mechanisms of the human rights system provide important tools for responding to climate-related harms, including litigation. Although they will offer no panacea, it would be profoundly self-limiting not to exploit them to the fullest extent possible. There are at least three elements to consider.
First, the human rights framework includes important principles which need to be applied in the context of addressing loss and damage. Among them are:
international co-operation
a social and international order within which rights and freedoms can be fully realised
non-discrimination (including a requirement to address the conditions which perpetuate discrimination)
substantive equality
accountability
access to information
public participation
access to justice
Second, the human rights system is based upon the legally binding obligations of states which need to be leveraged. Human rights are deeply embedded in the multilateral system and within domestic legislation, while the UN Guiding Principles on Business and Human Rights place clear responsibilities upon corporations.
While there is no means of enforcement at an international level, the transnational nature of human rights based on an agreed system of laws and norms offers a framework for addressing harms which are transboundary in nature.
Third, the human rights system includes well-established norms and mechanisms for addressing secondary crises resulting from climate change which are only likely to grow, such as displacement. While the global system for the protection of refugees and internally displaced persons has serious shortcomings, this exists no alternative framework. The only option at present is to pursue reforms within this framework to ensure it becomes fit for purpose.