Paragraph 51 is a clause in the decision that adopts the Paris Climate Agreement relevant to Article 8 on Loss and Damage, which “Agrees that Article 8 of the Agreement does not involve or provide a basis for any liability or compensation.”
Paragraph 51 Decision 1/COP21
Vulnerable communities unjustly bear the cost of a climate crisis they did not create, in order to maintain their own survival, basic human rights, and well-being.
There are different estimations of loss and damage and, to have an accurate number, there must be a due process analysis that depends on each specific context. However, economic damage for developing countries due to loss and damage has been estimated to be as high as $428 billion per year by 2030 and up to $1.67 trillion per year by 2050 at 3°C of warming.
Loss and Damage is commonly presented in economic terms although this approach fails to recognize the non-economic devastation to identity, cultural heritage, language, human rights, wellbeing, ecosystem services and indigenous societies.
Aside from inadequate humanitarian aid flow, these communities have largely been left to cope with the consequences of climate change alone.
The degree of losses and damages that these impacts cause are a testimony to the limits of adapting to climate change and to the lack of a funded and just structural response from the international community, including the UNFCCC, to deal with residual risks.
Addressing loss and damage must be consistent with existing human rights agreements, obligations, standards and principles. Those who unjustly and disproportionately suffer loss and damage must have access to effective remedies.
“Agrees that Article 8 of the Agreement does not involve or provide a basis for any liability or compensation.”
This essentially tries to ensure that developed countries cannot be held accountable at the Climate Regime for the climate losses and damages that frontline vulnerable communities around the world have, are, and will experience, either by way of compensation or by legal means.
The inclusion of Paragraph 51 in the Paris Decision CP21 presents an extraordinary challenge surrounding the issues of compensation and liability. Despite this handicap, the fight for receiving compensation and holding polluters to account is far from over at the multilateral level.
Times have changed since the date the Paris Agreement was negotiated. All Parties to the UNFCCC, including Annex I parties, have experienced unfathomable climate loss and damage within their communities in the last 5 years. Political realities are different from 2015, and it is now time to reopen the discussions around compensation and liabilities for those historically and currently responsible for the climate emergency.
To avoid tackling this issue several Parties have employed underhanded political tactics both within the Executive Committee of the WIM and in climate litigation to circumvent their responsibilities. Regardless of these tactics, it is clear that Paragraph 51 is unacceptable, unethical and therefore fully negotiable by Parties to the UNFCCC and the Paris Agreement. Furthermore, discussions about state responsibility as framed under the CBDR are not excluded by paragraph 51 and represents an opening to push back and explore litigation options outside the UNFCCC as well as rights based approaches and climate justice regarding Loss and Damage.
In the current climate crisis, the mounting losses and damages are not speculative, and a focus on mitigation solutions. Collective climate action cannot undermine rights-based approaches. Paragraph 51 must be removed or reviewed as a relevant step towards climate justice and to structure a governance response that stands alongside the most vulnerable.
Inconsistent with the UNFCCC’s equity principles
The UNFCCC’s equity principles demonstrate that wealthier countries must urgently and dramatically deepen their own emissions reduction efforts, and must contribute to mitigation, adaptation and addressing loss and damage initiatives in developing countries; and support additional sustainable actions outside their own borders that enable climate-compatible sustainable development in developing countries.
Paragraph 51 violates human rights
When countries fail to act domestically and abroad to reduce emissions and enhance climate action, including to support vulnerable, marginalized and disadvantaged countries, they are violating human rights.
“Under human rights law, those who suffer human rights harms because of climate change are entitled to protection and effective remedy,”
U.N. High Commissioner for Human Rights Michele Bachelet