By Daniel Otunge

The agreement among the United Nations (UN) member states to set up a fund to be used to compensate victims of climate change loss and damage (L&D) was lauded as a step in the right direction and one of the major outcomes of COP 27.

Customarily, hammering out details of how to set up the fund was left to the UN to lead. The UN does not make unilateral decisions, especially on such touchy issues. It lets the members decide through various diplomatic means, including negotiations.

Thus, during the COP 27 Climate Summit held in Egypt, November 2022, the state parties agreed that a transitional committee comprising 24 members (distributed per region) be set up to work out the details of the fund. So far, all regions have nominated all their members except Asia (website).

The United Nations Framework on Climate Change (UNFCC) says the 24-member Transitional Committee was drawn from Parties to the Convention and the Paris Agreement on Climate Change, with 10 members from developed country Parties and 14 members from developing country Parties.

Out of the 14 developing members 12 have been nominated. Africa has nominated three experts from Sudan, South Africa and Egypt to represent it on the Transitional Committee. Latin America and the Caribbean have nominated all its six representatives. Small island developing states and least developed states have also filled their two positions respectively.

Meanwhile, Asia and the Pacific region, which also has three slots, has (as of 17th February 2023) nominated only Ms. Hana AlHashimi of the United Arab Emirates (UAE), who is representing the incoming President of COP 28. The countries have not agreed on how to share the two remaining open slots. It is instructive to note that at COP27, Parties set 15 December 2022 as the deadline for the nominations.

Armenia, which falls under the Developing country Party not included in the other categories, has also nominated one representative. The Developed country Parties have nominated all their 10 representatives. (click here for details about the membership).

For starters, loss and damage, according to the UNFCC, refers to the negative consequences that arise from the unavoidable risks of climate change, like rising sea levels, prolonged heatwaves, desertification, the acidification of the sea, and extreme events, such as bushfires, species extinction and crop failures. As the climate crisis unfolds, these events will happen more frequently, and the consequences will become more severe.

The committee’s uphill task is well cut out for it. There are many sticky issues surrounding this proposed loss and damage fund. For instance, who should pay and why, who should benefit, and who should oversee the funds?

Other issues of legal nature include fear of prosecution by those who are willing to pay for loss and damage since the act of paying could imply acceptance of responsibility for the loss and damage which can be used as the basis for a legal action against the payer. How will funds be raised? Will the contributions to the L&D kitty be mandatory or voluntary? Will the Polluter Pays Principle apply? How will damages be assessed? Will victims be paid as a community or individuals directly or through their governments? Simply put, how will compensation be assessed and accessed?

What is more, will governments be bound to contribute and or to compensate their own citizens? How will real victims of climate disasters be determined? Will courts be used to determine liability and damages to be paid into the fund or to the victims? Can states be victims? Thus, the question: what tools can the committee devise to obviate such fears and to answer such begging legal and procedural questions?

With the committee almost fully formed, the UN Climate Division has set 27-29 March 2023 as the date for the commencement of the Transition Committee’s deliberations on the funding for injuries caused by climate change effects.

Perhaps the urgency created by the impending talks to be held in Egypt will spur Asia-Pacific developing country Parties to iron out their differences and speed up the nomination process so that their nominees can be at the table later this month.

The committee has no luxury of time. Their deliverables are timebound. They must have something concrete to present at the COP 28 Climate Summit scheduled for Dubai later this year.

The world is expectant, given the continuing suffering of vulnerable communities hardest hit by the effects of climate change. In the Horn of Africa, for example, famine is ravaging families in their tens of thousands.

Drought has killed hundreds of livestock (sheep, goats, camels, cattle and donkeys) leaving millions of people and their households desperate due to the resultant mass destitution. Latest conservative estimates put the loss at more than 2.5 million livestock in Kenya alone.

And the tragedy is that the drought phenomenon in the region is cyclical. It recurs with predictable regularity. This also puts into sharp focus the policy failures in the affected countries, including Kenya, Ethiopia, and Djibouti. Not to mention Somalia which is ripped apart by deadly internal strife.

Deaths of goats and camels are indicative of the severity of the drought, a consequence of climate change. Typically, the two are the most resilient live assets and are often the last to die compared to cattle and sheep. Instructively, such animals are the mainstay and crucial sources of livelihood and nutrition for the pastoralists and their children.

So, will the funds be used to cover such losses? Will the funds pay for the consequences of both avoidable and unavoidable risks of climate change? Only the committee can tell us.

In the meantime, we wait for the Committee to sit, set rules, deliberate and hopefully set up the much-awaited Global Climate Change Loss and Damage Fund before COP 28 in Dubai.

The writer is an expert in climate change, environment & biodiversity laws.