Only Two days Left to Get It Right: a Loss and Damage Fund that Promotes Human Rights

Promoting the rights and ensuring effective remedy for people adversely harmed by the climate crisis remains sidelined in the international climate negotiations. The creation of the Loss and Damage Fund at COP27 was celebrated as a historic win for communities impacted by prolonged climate inaction. Yet, the world awaits confirmation of whether this Fund will truly deliver justice. With just two days remaining, the world watches in anticipation.

Delay, Denial, and Inaction

In the four meetings held by the Transitional Committee tasked with making the Loss and Damage Fund operational by COP28, we have mainly witnessed procrastination and unwillingness from wealthy nations to accept responsibility for the widespread harm they have caused and the need to provide remediation. Wealthy nations have persisted in making controversial suggestions about the governance and the structure for this Fund, such as setting it up under the World Bank. Such a move would undermine the Fund’s autonomy, deny equitable governance, and considerably restrict opportunities for direct access to resources for communities, while further burdening vulnerable countries with debt. It would perpetuate the avoidance by historic polluters of responsibility to pay for the loss and damage that they have caused. 

These unreasonable and delay tactics have unfortunately diverted focus and energy from creating a Loss and Damage Fund centered on the needs and priorities of communities and people, and upholding human rights. These counter-productive proposals led to the collapse of the talks at the Transitional Committee’s fourth meeting, leading to the need for an additional  session in Abu Dhabi on November 3 and 4 . 

Getting it Right(s-based)

The Committee now has two more days left to get it right at COP28. It’s crucial that a Governing Instrument be adopted to lay the foundation for an independent Loss and Damage Fund under the UN Framework Convention on Climate Change, able to deliver long-awaited justice to affected communities. It must explicitly recognize the importance of human rights obligations in the context of addressing loss and damage, and implement a human rights-based and gender-inclusive approach. The deletion of explicit references to human rights in the objectives and purpose of the Fund in the newest iteration of the text is highly concerning, especially given the number of decisions that will be left for the Board to take.

Achieving a truly human rights-based fund requires effective and meaningful participation by those most affected by years of climate inaction and civil society and Indigenous Peoples’ organizations across all tiers of the fund—from local needs assessments, design, and implementation of activities, to decision-making at the Board level. At its core, the Loss and Damage Fund is about people, and must be driven by them.

It is therefore highly deplorable that important proposals to include representation from Indigenous Peoples and other affected groups on the Board have been removed in the newest version of the text published ahead of TC5. The newest text brings us back to an active observer model, in line with the Green Climate Fund’s model, where observers don’t have the same access to documents, ability to intervene, and influence in the discussions and decisions as Board members. Including non-Party Board members will be a critical element for a rights-based fund. Instead of the regression we have seen between new iterations of the text, the proposal must be extended to include other affected groups, such as women, persons with disabilities, children and youth, as well as civil society organizations.

Inclusivity and Intersectionality are Key

Essentially, adopting a human rights-based approach means reaching those who need it most. While there has been ample discussion about the importance of focusing on those most vulnerable, there has been less clarity on how this will be executed. Attempts by developed countries to restrict the Fund to only small island states and least developed countries is not the right way: it is a problematic position that will contribute to human rights harm, as vulnerability to climate change transcends borders and, affects marginalized people in all developing countries grappling with the climate crisis’ repercussions.

If the fund genuinely aims to support those in the most vulnerable situations, it must put in place policies that promote the effective inclusion of marginalized and affected groups. This includes women and girls, Indigenous Peoples, children, and persons with disabilities, ensuring that no discrimination occurs and advancing substantive equality. The Governing Instrument, set to be agreed at COP28, must outline clear directives for the Board to develop such policies, emphasizing a truly intersectional and participatory approach.

However, having these policies in place will not be enough. Experience tells us that community-led approaches are the best way to achieve sustainable and just results. A dedicated funding window for direct community access to funds will be a key for the fund’s ability to meet the needs and priorities of those most affected. Any decision that prevents communities from accessing funds directly, such as hosting the Loss and Damage Fund under the World Bank, or not explicitly advancing direct community access, are counterproductive and should be rejected.

Safeguard Against Harm

The Loss and Damage Fund should not inflict any negative human rights or environmental impacts. Robust safeguards, consistent with international law and standards, are essential to prevent harm and ensure that the funding advances rights-compatible and transformative action. The Fund must also have effective mechanisms for monitoring and accountability in place, including an independent grievance redress mechanism at the Fund level, allowing  the public to raise concerns and seek redress in the case of harms caused by the Fund’s activities. 

This relates to contentious discussion about the location of the Fund: the proposal from the US and other developed countries to host the Fund under the World Bank would entail that the World Bank’s safeguards and grievance mechanisms would be the standard, despite these being inadequate and not designed for the distinct objectives of the Fund. This is not acceptable. The Loss and Damage Fund must dispose of a dedicated set of social and environmental safeguards tailored to its unique mission of addressing loss and damage. The Board of the Loss and Damage Fund must have full capacity, independence and a mandate to develop a dedicated set of safeguards to avoid harm and policies to do good, based on an inclusive and participatory process. Also an independent, centralized grievance mechanism at the Fund level, that reports to the Board, is essential to ensure accountability. 

Developed countries may voice their support for the most vulnerable and express desire to ensure that communities have access,but their proposed actions suggest otherwise. A significant shift in the approach of wealthy nations is crucial for the upcoming fifth meeting to succeed where the fourth could not. We cannot leave Abu Dhabi without a decision to establish an independent Loss and Damage Fund rooted in human rights.