Law Interview

Developed countries should accept responsibility to establish a loss and damage fund

Mr. Ian Fry is the UN Special Rapporteur on the promotion and protection of human rights in the context of climate change. He is an international environmental law and policy expert. His focus has primarily focused on mitigation policies and loss and damage associated with the Paris Agreement, Kyoto Protocol and related instruments. Mr. Fry is the Pacific Regional Representative to the United Nations for the International Council on Environmental Law, and a member of the IUCN World Commission on Environmental Law. Mr. Fry coordinates the Least Developed Countries on matters relating to carbon markets and is currently on the Bureau of the UNFCCC.

During his recent visit to Bangladesh, Mohammad Golam Sarwar, Consultant, Law Desk, talks to him on the following issues.

Law Desk (LD): Considering that the nexus between human rights and climate change is obviously increasing at the global level, how can we contextualise this at the national level, particularly in the context of Bangladesh. How do you see the prospects as well as the challenges?

Ian Fry (IF): There are many civil society groups I have met during my visit here that are making the connection between climate change and human rights and clearly, it cannot be ignored that climate change is having a huge impact on people's lives and therefore they're human rights. Academic institutions have an important role to play in further contextualising this. It came up in some discussions I had with the UNESCO that there needs to be better connections in the school curriculum to identify climate change and the impacts that it has. So I think that there are opportunities in this sector and the international community can help further develop the role.

LD: How do you see the future of the ongoing negotiations on loss and damage funding mechanism for the interest of developing countries like Bangladesh?

IF: It is critical that there be an agreement to establish some sort of loss and damage fund. There will certainly be significant efforts made at the next COP. And I understand the G77 has made a request for it to be on the agenda of the COP, although it wasn't formally on the agenda of the COP to start off with. So then there has to be a debate in the COP itself as to whether the parties will accept this additional agenda item. This is the first hurdle and we know that there are major developed countries who are opposed to consideration of this and continue to have these sorts of procedural debates. What I'm recommending in my report to the UN General Assembly in October is to establish a loss and damage fund, specifically, under the auspices of the UN General Assembly, we cannot continue to have this sort of stalemate situation with the developed countries blocking the consideration of loss and damage fund. And so I am suggesting the UN Secretary General to establish a group of finance experts to consult and identify the modalities and the sources of funding for a loss and damage fund and the amount of money required is significant and well beyond the current financial arrangements that are under the COP. Many countries such as Mozambique, South Sudan, Bangladesh are already facing large costs, and these are going to get larger as time goes on. So, my opinion is that this has to be taken to a higher level of decision-making.

LD: How do you view the historic imbalance or the historic responsibility for emitting greenhouse gases that disproportionately impact the developing countries. What are the scopes for ensuring accountability of the developed countries?

IF: It is inevitable that either the countries accept a responsibility to establish a loss and damage fund or they must face greater number of climate litigation. The developed countries have to decide whether it is better for them to accept the need for loss and damage funding. At the last COP, Scotland stepped up in favour of putting money into a loss and damage fund. So we may progressively see other developed countries take that line as well.

LD: The recent UNGA resolution which is brought forward by Vanuatu seeks the opinion of International Court of Justice (ICJ) whether a victim country can bring a claim under international law against a polluting country. What avenues would a positive opinion of the ICJ open up and what could this mean for the Global South and do you anticipate any challenges in resorting judicial mechanisms as address point for climate change induced loss and damage?

IF: I sat on the fence about this seeking ICJ case because there is already a dispute resolution mechanism under the Climate Convention and under the Paris Agreement. Neither of those options have been tried. Whether such a case in the ICJ opens the door for more than mitigation will have to be seen but from my view, there is already that legal opportunity there now in the Climate Convention and the Paris Agreement.

LD: Another issue that Bangladesh is facing is the climate change induced displacement. Climate change is working as a triggering factor for trafficking and exploitation and this has definitely implications on human rights. How do you see the victims of displacement or trafficking in relation to climate change? And do you think that the existing human rights framework is sufficient to address the needs and concerns of these groups?

IF: There are guidelines on treatment of internally displaced people but they are not legally binding requirements and therefore there needs to be consideration of whether those sorts of guidelines need to be developed further into international law. This is needed to oblige states to do more about internally displaced people, particularly, as these are going to increase as a consequence of climate change. Again you have the people who are displaced across international borders and the number of people are increasing. These people are not defined as refugees under the Refugee Convention and therefore fall through the cracks to some extent, as far as legal protection is concerned. And this is one of the issues I'll be looking at as part of my mandate under the issue of climate change displacement as to whether we can create a new regime, whether that's a protocol to the Refugee Convention or a separate international legal instrument to give protection to people who are displaced across international borders.

LD: How do you assess the role of international community in redressing the plights of the displaced Rohingya population since many of these are exacerbated by climate change?

IF: Clearly the Rohingyas are suffering particular issues in dealing with climate change, but there are much broader issues; human rights issues as far as why they are displaced and geopolitical issues that are broader than the sort of climate change issues that those people face. Bangladesh should take credit for taking on the responsibilities of the Rohingya population, and it is undeniable that the Rohingya population is facing the brunt of climate change. However, there are much broader human rights issues which the international community must look into with regard to the Rohingya crisis.

LD: How do you see the position of Bangladesh in respecting human rights and climate change under the due diligence and on the other hand, continuing with the pace of economic growth?

IF: This is a significant issue and a delicate path to tread, to ensure corporate social responsibility as far as ensuring that the rights of workers are properly protected under conditions that are adversely affected by climate change, yet to fulfill the role of economic aspirations of a country like Bangladesh. So, there has to be sort of careful consideration of this and not this being seen as a sort of North imposing on the South.

There has to be a proper dialogue between all parties on this issue and certainly workers have their rights and they should be respected and the development aspirations of the country should be respected as well.

LD: The IUCN recently published a report on environmental rule of law index which shows a dramatic growth of environmental laws at the global level, but on the other hand, we see a widespread failure to enforce environmental legislation or climate legislations. What are your views on this trend?

IF: It is a concerning trend that while we are developing more environmental laws across the world that the enforcement of those laws is not so strong. The current geopolitical state makes enforcement difficult. We have just seen in Chile that a referendum for revising the Constitution to make it more environmentally friendly was rejected. We see similar pushback from a number of countries against this sort of regulation and this reflects the power of the corporate sector in influencing the government's ability to enforce environmental law. And this is an issue across the globe. Many countries are slipping backwards in their environmental obligations due to the economic effects caused by the Ukraine war.

I'm hopeful that this resolution which is only very new will help drive countries to make constitutional reforms to recognise environmental right and hopefully they will work harder to develop national legislation to enforce that right and hopefully there will be momentum drawn from that resolution for that to happen. So I'm looking forward to countries looking at that resolution and using that as a basis to enhance their constitutions and national laws and enforcement of those laws. Another crucial issue is the education of the judiciary on environmental right as well.

LD: Can you suggest one or two points that Bangladesh should take immediately to pioneer the idea of human rights and climate change in Bangladesh?

IF: I spoke with relevant ministries who have said that they are working on a climate change and gender action plan. I think this is clearly one of the issues that needs to be further enhanced. From my visits to various parts of the country, it's very clear that women are at the forefront of the impacts of climate change. The other issue is the issue of informal settlements, slums and internally displaced people. I think the government needs to take stronger action to try and find remedial measures around the internally displaced people. The government also needs to try and create opportunities, at the regional level to disperse the pressure on Dhaka, for internally displaced people who come here seeking employment opportunities.

Moreover, the government's response to its obligations and the Paris Agreement as far as reducing emissions needs further attention. The increased development of coal-fired power stations compromises this commitment. A developing economy like Bangladesh needs energy and power and that needs to be recognised. But the government, the country also needs to be self-sufficient in its energy and the best way to do that is with renewable energy.

So there are clearly actions that could be taken around energy that could be advanced quite significantly.

LD: Thanks for your time.

IF: You are welcome.


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