“Where’s The Finance (WTF)?” That was the question posed repeatedly the past two weeks during the UNFCCC’s 19th Conference of the Parties (COP) in Warsaw. But this simply leads to another question: “Where’s the Law?”
In other cases of environmental damage for the past seventy years, under international law the question of “Where’s the Finance?” has been comparatively easy to answer—it lies with the countries to blame for the harms caused. This is known as the polluter pays principle (PPP), and it is now a widely recognized tenet of international law. Yet the PPP has yet to materialize in any UNFCCC agreements, meaning that developing countries, which are the hardest hit by climate change, are left with minimal financial assistance.
Ironically, it was a case brought by the United States that provided the initial foundation for the PPP. In the 1941 Trail Smelter decision the United States won a dispute against Canada for compensation for pollution damages caused to the U.S. by a Canadian smelter.
With climate change, however, the U.S. and other developed countries are successfully keeping compensation out of the picture, and this COP in Warsaw was no different. The “Warsaw international mechanism for loss and damage (IMLD)” is the compromise States reached during their overtime negotiations on Saturday, November 23. Despite the calls of developing nations to create a separate loss and damage mechanism, the IMLD will be housed under the existing adaptation mechanisms. Essentially this means that funding provided by developed nations, if and when it should materialize, will come in the form of financial assistance, not compensation for harm caused by greenhouse gas emissions. And this financial assistance will almost certainly be far from adequate.
It may be up to other international legal institutions to bring compensation into the picture. In 2011 and 2012 the island nation of Palau sought an advisory opinion from the International Court of Justice (ICJ) on whether the world’s largest greenhouse gas emitters are responsible for harm caused to developing countries. While an advisory opinion would not be binding, it could offer sufficient legal support to compel States to create a loss and damage mechanism based on compensation. However, developed countries, led by the United States, stymied Palau’s campaign, and it is, for now, dead in the water.
So Where’s The Finance? Until we answer the question of “Where’s the Law?” finance may remain elusive. As the latest COP further demonstrates, answering the question of “Where’s the Law” may take the authority of a body outside the UNFCCC altogether—like the ICJ. Until the entire international community understands compensation to be a legally binding obligation that they cannot negotiate away, developing countries will likely be left asking “WTF?”
Jennifer Skene is a third-year law student at Yale from Tallahassee, FL. She is the chair of the Native American Law Students Association, a board member for the Yale Environmental Law Association, and a Features Editor on the Yale Journal of International Law. Jennifer is active in Yale's Environmental Protection Clinic, and this past summer she received a Ford Fellowship to work at the Center for International Environmental Law.