HLRN Side Event on Loss & Damage
The Global Land Tool Network (GLTN) is a dynamic and multisectoral alliance of international partners committed to improving equitable and sustainable access to, use of and governance of land and increasing tenure security for all. GLTN especially focuses on improving the situation of the poor, women and youth. HIC-HLRN is among the Network’s founding partners, who include international rural and urban civil society organizations, research and training institutions, bilateral and multilateral organizations, and international professional bodies.
During the recent GLTN Partners Meetings at Nairobi, 2–4 May 2023, HIC-HLRN organized a side event in cooperation with Slum/Shack Dwellers International (SDI) to present experience at community-based data collection, in general, and focus on its application, in particular, to loss and damage associated with climate change. This event follows the recent decision by the 27th Conference of parties to the climate-change conventions (CoP27) to establish the Loss and Damage Fund
Ahmed Mansour (Housing and Land Rights Network – Habitat International Coalition—HIC-HLRN) welcomed the gathering’s 23 in-person and 19 online participants, introduced the subject and session format, and moderated the session. He emphasized the urgency of solutions for the many vulnerable communities on the front line of climate change, as well as the continuing priority of durable solutions for those millions already subject to protracted displacement. Ahmed also identified some of the challenges such as amplifying the voices of those subject to past, present and future impacts, as well as quantifying and remedying the material, as well as the non-material values at stake.
Nelson Ncube (People’s Process on Housing and Poverty in Zambia (PPHPZ) and SDI) provided an overview of experience at generating community-based data for purposes of mapping communities. Nelson emphasized a central theme and principle of operation in urban poor collecting, generating and presenting locally produced data; that is “nothing about us without us.” These processes not only produce reliable information, but also ensure active participation of, and build solidarity among, inhabitants. He summarized experience since 2005 that has developed also to form practical alliances with academics and universities to refine and analyze findings. However, he stressed that the approach has always been people led, avoiding treatment of the poor as mere “guinea pigs.”
Joseph Schechla (HIC-HLRN) followed with a PPT presentation that opened with normative frameworks defining “climate justice,” starting with the climate-justice principles proffered by the Mary Robinson Foundation (MRF), overlayed with those articulated in the October 2021 statement of HIC’s President Adriana Allen on a “human right to climate justice.” While the two sets of criteria were compatible, Joseph pointed out that the MRF principles speak more to relevant process, while the HIC statement reflects as aspired outcomes.
Reviewing the human responses to climate change so far, Joseph pointed to the diagnostics of the problem, however missing the opportunity for prevention, adaptation and mitigation measures, as well as humanitarian interventions. The current discourse on potential remedies, including for loss and damage associated with climate change, has so far focused on state-to-state deliberations over “compensation.” However, a human-centered approach is still needed within the framework of reparations.
Joseph laid out set over normative frameworks simultaneously applicable to states that include: (1) Human Rights Treaty-based obligations, (2) human rights related obligations related to development commitments, (3) policy coherence (aligning and harmonizing short-term emergency and humanitarian relief with longer-term and institution-building development approaches within the framework of human rights, with their combined preventive and remedial dimensions), the corresponding accountability of actors, as well as the priority given to victims and affected populations’ rights to remedy and reparation.
He unpacked the content and meaning of reparations, as defined by the UN General Assembly for gross violations of human rights and serious violations of international humanitarian law (A/RES/60/147), with its seven entitlements: restitution, including return (if possible), resettlement (if necessary), rehabilitation of all kinds, compensation for those values and harms impossible to bring to restitution, guarantees of non-repetition of the violations or harm, and the satisfaction of those affected. Following this soft-law norm, the entitlement of satisfaction could logically only be achieved and/or measured through affected people’s own quantification of values at stake and subject to restitution.
Turning to the Paris Agreement (Article 8), Joseph summarized the agreement ensuring that the Warsaw International Mechanism (WIM) on loss and damage associated with climate change would be maintained in the post-2020 climate regime with a focus on:
(1) slow-onset events (SOE);
(2) noneconomic losses (NEL);
(3) comprehensive risk management approaches (CRM);
(4) human mobility (HM); and
(5) WIM finance, action and support (FAS).
So far, the WIM’s Executive Committee’s three key functions have involved:
- Enhancing knowledge and understanding of comprehensive risk-management approaches;
- Strengthening dialogue, coordination, coherence and synergies among relevant stakeholders; and
- Enhancing action and support to address loss and damage.
While the first two are being implemented, the Committee has not advanced on the third until now. The current phase poses a chance for advancement. However, it is constrained by politics, initial technical and bureaucratic groundwork, the lack of a methodology and eligibility criteria, and the lack of funds so far. In this light, HIC-HLRN offers its monitoring and impact-quantification experience, which Joseph outlined.
He presented the methodology HLRN developed for determining housing and land losses from environmental hazards and climate change events as “violations”; i.e., requiring the documented identification of human factor and duty holders. That method is grounded in the Articles on State Responsibility and, especially, the legal principle of foreseeability. With those criteria, HLRN reported 36 cases from 13 different contexts on World Habitat Day 2022. Those cases that involve the gross violation of forced eviction entitle victims to the seven entitlements of reparation.
Joseph then introduced the HLRN’s Violation Impact-assessment Tool (VIAT) with examples of applications, ranging from the local scope of a slum removal and flooded Dalit village, to land restitution in Yemen as a contribution to eventual transitional justice.
The discussion included suggestions on how the quantification method could be used in sectoral and national policy and planning, genderized applications and such non-economic values as loss of education and social capital, etc. Other comments focused on the need for debt relief in addition to Loss & Damage Fund grants. Others referred to the hazard of the Loss & Damage Fund benefiting private interests over actual victim needs.
A participant from Nigeria identified another hazard in providing mere cash compensation for loss and damage in the case of recipients spending it on unsustainable activities or consumer goods. Joseph responded with the example of methods being discussed in the context of reconstruction in Ukraine using negotiable digital tokens, instead of cash, that could be spent for specific purposes such as building materials. He referred to cases of quantification of comprehensive shifting costs in advance of displacement so that the affected people know what they are getting into, including through related capacity building, to know long-term economic prospects under resettlement.
In response to another question about how the data could be used in litigation, Joseph recounted the exemplary case of Muthurwa Estates, in which the Nairobi High Court including the shifting costs in his ruling in favor of settlement in which the evictor would indemnify the evictees for long-term costs of resettlement and the material and social adjustment to a life comparable to that left behind. That case remains subject to court-ordered negotiation between the parties.
Some questions addressed the VIAT application in the context of gentrification processes and how the method could help fill gaps in national policy and laws related to evictions, land acquisition and compensation, as well as a basis for collaboration with other GLTN Partners and in learning opportunities such as the upcoming Regional Climate Weeks.