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KZN floods — COP27 the next battleground for climate justice and damage compensation


Tracy-Lynn Field is Claude Leon Chair in Earth Justice and Stewardship. Professor Field is an enrolled advocate and Professor in the Wits School of Law.

Amid the flurry of necessary national introspection over the Durban floods, we must not lose sight of a key international battle for climate justice, which will play out at COP27 in Egypt later this year. This is the battle for just climate finance, and finance for ‘loss and damage’ in particular.

The KZN flood devastation has shocked South Africans and thrust the climate crisis into the mainstream more than ever before. The intensity of the flooding, the extensive damage to economic and social infrastructure, and the tragic loss of life have foregrounded, again, the horror of living with climate change in a developing country.

Media commentary has linked this particular flooding catastrophe to inequality, corruption, ineptitude and a lack of political will, poorly-maintained infrastructure, and ineffective law enforcement. SALGA has called for more “climate-resilient” infrastructure, poor people have been instructed not to build on riverbanks or in flood-prone areas, and others have called for an overhaul of emergency response systems.

But in this flurry of necessary national introspection, we must not lose sight of an important international battle for climate justice, which will play out at COP27 in Egypt later this year. This is the battle for just climate finance, and finance for “loss and damage” in particular.

“Loss and damage”, like mitigation and adaptation, is a construct of the international system of climate change legal texts and negotiations. It emphasises the need for policies, activities and, most importantly, finance for climate change impacts that are “beyond adaptation”. The idea that developed country parties to the United Nations Framework Convention on Climate Change (UNFCCC), should compensate vulnerable developing country parties for climate change loss and damage has been vociferously and consistently rejected, most recently by developed country negotiators at COP26 in Glasgow.

Were the impacts of the floods in KZN “beyond adaptation”? eThekwini has certainly not been a laggard in the climate change adaptation space. In addition to launching Africa’s first landfill gas to electricity project in 2007, the metro hosts the secretariat of the Durban Adaptation Charter (an agreement between more than 1,100 local and sub-national governments to accelerate adaptation efforts), adopted a Climate Change Strategy in 2014 as part of its Municipal Climate Protection Programme, and was the first city in Africa to complete a Climate Action Plan aligned with the Paris Agreement in collaboration with the C40 Cities global network.

A stunning reversal after KZN floods — the ANC now guilty until proven innocent

Even if all these adaptation plans were implemented, there is room to argue that the damage inflicted by a four-day “rain bomb” was unavoidable. Is it just that South African state institutions and civic organisations have no international financial mechanism to turn to in order to buffer the cost of climate change-related “loss and damage”, such as the cost of repairing damaged roads, bridges and schools?

Developing countries have raised the need for a global loss and damage compensation mechanism since the original development and drafting of the UNFCCC, but over three decades the compromises won from developed countries have been small.

In 2013, the UNFCCC parties agreed to establish the Warsaw Implementation Mechanism for Loss and Damage (WIM). While the WIM was established to advance knowledge generation, coordination and action and support to address loss and damage under the UNFCCC, the third function of action and support has lagged behind.

In 2015, a provision on loss and damage was included in Article 8 of the Paris Agreement, but the text makes no mention of compensation. The WIM was reviewed at COP25 in 2019, but the outcome was yet another poorly-defined platform for engagement and coordination (the Santiago Network for averting, minimising and addressing loss and damage, of which South Africa is a member).

Whether loss and damage form part of adaption action and humanitarian aid, or constitute a separate, third pillar of the UNFCCC has been a key sticking point in these protracted climate change negotiations.

Developed country parties’ attempts to squash loss and damage into the adaptation frame are all the more contentious in light of their failure to meet the 2009/2010 political goal of $100-billion annual climate financing by 2020, which is supposed to be split 50/50 between mitigation and adaptation support (and holds as a commitment until 2025). A variety of sources have confirmed a shortfall, but even this is difficult to calculate as developed countries baulk at agreeing to a multilaterally-determined definition of climate finance.

At COP26 there was a strong push for needs-based rather than politically determined climate finance goals. Negotiators from the Like-Minded Group of Countries and the African Group, for example, submitted a draft decision committing developed countries to jointly mobilise $1.3-trillion per year by 2030 as a post-2025 climate finance goal. This submission was met with furious push-back on the part of developed countries, and the decision for setting a post-2025 climate goal is now largely a procedural one.

Hope for setting up the Glasgow Loss and Damage Facility suffered a similar fate. In the lead up to COP26, more than 300 civil society organisations called for need-based loss and damage financing for developing countries; the Stockholm Environment Institute released a report outlining the principled basis for a fair and feasible loss and damage finance mechanism (laying strong emphasis on “solidarity” and historical responsibility rather than compulsory liability); the Scottish Government made an (unprecedented) £2-million commitment to loss and damage; and five philanthropies offered a further $3-million in kick-start funding for such a facility. But the COP only delivered weak commitments to establish the “Glasgow Dialogue” under the UNFCCC’s Subsidiary Body for Implementation and small amounts of funding to develop the SNLD.

While the Glasgow Dialogue and SNLD present opportunities to shape the dialogue on loss and damage, all eyes are now turned toward COP27. As an analysis published by the Henrich Böll Foundation points out:

“In the aftermath of Glasgow, in many developed countries’ capitals a reckoning has begun that their categorical no to financial support for developing countries to address loss and damage is ultimately untenable. Some discussions have started on how to avoid the liability issue while providing support. This can set the scene for a breakthrough on finance for Loss and Damage at COP27, especially if the collective pressure by civil society and developing countries is maintained.”

The 2022 KZN floods are not the first climate-change-induced extreme weather event that will hit our shores, and will not be the last. And while sympathy pours forth for the flood victims, we should also bear in mind that other parts of our country are still in the grip of a worst-in-100-years drought.

We must do all we can to build national solidarity and resilience in the wake of these tragic events. But at the same time, and especially this year, all sectors of society must turn up the pressure for a just loss and damage finance mechanism at COP27. OBP/DM


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