The Highest Stakes

Published Dec 13, 2023

With the backdrop of the United Nations Climate Change Conference (COP28), Jess catches up with lawyer and climate negotiator Hafij Khan about the critical Loss and Damage fund and this year's conference.


That clip is from a song called “Kyoto Now” by the punk group Bad Religion. Many of our listeners who were politically or scientifically conscious in 1997 may remember the Kyoto Protocol. It was the result of the third United Nations Climate Change Conference, or COP3. The Protocol was an international climate-focused treaty to control human-caused greenhouse gas emissions. This was an effort to ease the impacts of climate change by changing what is within our power to control…our own emissions, and while the United States signed the treaty it never ratified it.

The day this episode is released will be the last day of COP28, or the 25th United Nations Climate Change Conference since the one which birthed the Kyoto Protocol.

Since Bad Religion released a song imploring US government leaders to ratify the Kyoto Protocol and actually reduce the country’s greenhouse gas emissions way back in 2002, I thought it would be prudent to examine just how things are going a quarter of a century on from the Kyoto Protocol.

Here’s climate scientist Dr. Michael Mann from the University of Pennsylvania on PBS NewsHour:

News clip about COP28

Ok, so there has been movement from affluent nations including the US, but if you listen to this show I know you’ve heard about the effects of climate change we’re already facing worldwide. In the US we’ve dealt with historic wildfires, floods, droughts, storms, and more…and that’s just within the last year or so. Did you know that between May through October of 2023, 96% of Americans experienced an extreme weather alert?

Climate change is here, and it’s already hurting and killing us. As is all too common when disaster strikes, people in what’s known as the Global South, or in what are categorized as “Least Developed Countries” or LDCs, are disproportionately harmed when climate change comes calling.

In a truly perverse twist of fate, the Least Developed Countries are also responsible for far, far lower emissions of greenhouse gases both historically and now than are more affluent nations like the United States, the European Union, and China (to name a few).

So if the folks in the Least Developed Countries didn’t start the fire, then what are they supposed to do to fight it? The easy answer is that they need to phone a friend. Or several friends. Ok, maybe not actual friends, but at least the countries responsible for the overwhelming majority of greenhouse gas emissions since the Industrial Revolution.

Through the Loss and Damage fund conceived via past COP meetings, affluent nations with their hands dirty from greenhouse gas emissions are supposed to make sure the Least Developed Countries have funds available to help mitigate the impacts of climate change on their people and infrastructure. But how much money are the wealthy nations really contributing? How much is needed to clean up the deadly messes left by extreme weather events, sea level rise, and other climate consequences?

And how do you put a dollar value on not just property, but someone’s homeland, their culture, and the entire history of their ancestors on Earth?

While this may seem like a Sisyphean task, I’m happy to say that this work isn’t the stuff of myth or legend. Real people are at COP28 negotiating climate policy on the global stage as I record this, and they are quite literally bargaining for the future of their people, their homes, and everything we all hold dear.

I’m your host Jess Phoenix, and this is science.

Jess: Today, I'm speaking with Hafij Khan, an environmental lawyer and climate negotiator. He has worked with the International Center for Climate Change and Development, the Center for Climate Justice, Bangladesh, and for the Least Developed Countries Group, on climate change, environmental justice, and natural resources issues. With the upcoming United Nations Framework Convention on Climate change, or COP 28, as you'll hear it called in the media, just a few days away, I couldn't think of anyone better to give us insight into what's at stake. Hafij is actually at COP 28, in Dubai, right now, where he's speaking to me from. And so, I just wanted to start by asking you if you could explain the concept of loss and damage in terms of climate impacts, for our audience.

Hafij: I just thank you so much. You know, tomorrow is going to start the COP 28, but we are here already for preparatory meetings. And I do co-coordinate, with Ambassador Adao, 46 Least Developing Countries, particularly on the loss and damage. So, you know, the loss and damage, there are three policy pillars at this moment at the global level. One is the mitigation, adaptation, and third pillar is the loss and damage. You know, the global community is not taking adequate efforts to mitigate. Also failed to adapt with the adverse impacts of climate change. Now, the loss and damage resulting from climate change is the reality. Our communities, our states, are facing loss and damage now every moment. For example, Bangladesh, we are facing very frequently the tropical cyclones and floods, and, you know, and there's also sea level raise and associated saline water intrusion.

So, our communities are facing loss and damage every moment. Not only in Bangladesh, all over the world. So, with that context, global community is now is more than 12 years we are trying to negotiate and develop the global policy [inaudible 00:02:21] at the UNEP-CCC on loss and damage. Particularly for COP 28, there are some crunch issues. I'd be happy to explain the crunch issues for COP 28.

Jess: Oh, please. I would love to hear them.

Hafij: Yeah. You know, COP 28 is particularly important for global stocktake. You know, the Paris Agreement, it doesn't have the rigorous compliance mechanism. Global stocktake, and the transparency framework, and the compliance committee, I would say is a triangle compliance approach for the Paris Agreement. So, and this is the first time for Paris Agreement, and the parties are negotiating for global stocktake to be adopted here. Secondly, the global goal on adaptation. Parties is going to adopt the global goals and targets for the adaptation. And third, and most importantly, parties of the Convention on the Paris Agreement is going to adopt the recommendations that put forwarded by transitional Committee for Loss and Damage Fund, and it is now bit critical. It is politically critical, in fact. You know, last year, at COP 27, parties agreed to established a loss and damage fund, a new funding arrangement for loss and damage. Thereafter, a transitional committee was formed. Twenty-four members of the transitional committee, also 24 advisors, worked throughout the year. I'm very happy to share that I was also a transitional committee member for a short time, but as an adviser to Least Developing Country transitional committee member, I work throughout the year. So transition committee made some recommendations, in accordance with their mandates. Now, parties to adopt, here, at COP 28.

Jess: I know people are going to be curious about this. So, you're a lawyer, and you're not a scientist, but you must work with scientists all the time, to make this stuff happen. So, how are scientists and lawyers working together to quantify the terms and the harms of human-driven climate change?

Hafij: Yeah. You know, science is the basis. Science gives us clear directions for the politicians and the policymakers. So, you know, IPCC is giving us clear direction that loss and damage is the reality. If you look at the Sixth Assessment Report, the IPCC clearly identified the limits of the adaptation, and reality of the loss and damage. And the IPCC Sixth Assessment Report talked about economic and non-economic loss and damage, and the damage to ecosystems, particularly. So, that is really threatening for the global communities. So, science tells us clear directions and evidences on loss and damage. So, now, we are the policymakers trying to develop the relevant policies. Jess, you know that we are involved with negotiation process for last, more than a decade. So far, we got on the Warsaw International Mechanism. That's an institute under, UNEP-CCC. And there is an executive committees form under that international mechanism. It was in 2013, and then again, 2019, parties agreed to establish the Santiago Network. That's the technical arm of this international mechanism. Thirdly, we got the loss and damage fund. Now, you see, under this international mechanism, we got the executive committee. That is, we do consider as a policy arm. Secondly, Santiago Network, we do consider as a technical arm, and finally, the loss and damage fund. So, policy arm, technical arm, and the financial facility, under this mechanism, now is a comprehensive institutional mechanism, established under the UNEP-CCC. Now is challenge to operationalize these different institutions. Particularly at COP 28, we need to adopt the relevant decisions to operationalize the Santiago Network. Also, we need to adopt the mechanism that would operationalize the loss and damage fund.

Jess: It sounds like the groundwork has been laid to make real change internationally here. I’m curious about the loss and damage fund specifically.

So, I'd be happy to talk about the loss and damage fund particularly, as I was talking that at COP 27 parties agreed to establish a loss and damage fund under that transitional committee was formed, and throughout the year transitional committee worked. They met five times in this year, and the works of the transitional committee was informed by the technical works by the secretariat. Also, there was a TSU, a Technical Support Unit, that was formed by the secretariat. TSU also developed some of the relevant papers. So, you see the works of the transitional committee was really informed by the workshop submissions by the parties and the other stakeholders, and also taking of papers by the secretariat.

So, it was a methodological work, I would say, the transitional committee followed throughout the year. Finally, they recommended a 17-pages documents. One initiative is the governing instrument for the fund, and a second initiative is some recommendations related to funding arrangement. So, in terms of the cover decision, basically, it invited World Bank to host the secretariat of the fund, and to operationalize this fund as financial intermediary fund. That is called a FIF. You might know that there are other many FIF, or financial intermediary fund established by the World Bank.

But it is really different. Why different? You know, soon after an event, climatic event, like cyclone, or floods, community needs to be supported immediately, including some financial resources they need to receive. So, how this fund, hosting by the World Bank, can support the vulnerable communities soon after an event. So, we proposed this fund will take trigger-based approach. It means, soon after the event, the fund needs to release the funds, so that can support. It is very, very new for any financial entities. You know, mostly the funding arrangements are project-based. Parties develop the projects, programs, and they get, access the funds. So, this is not the project-based approach. It needs to be trigger-based. That is the challenge for this fund.

Secondly, it needs to be accessed directly by the vulnerable states. We, the transition committee suggested that this fund should be operationalized with an innovative mechanism that can support directly to the vulnerable states, that can support annual budget of the vulnerable countries, so that they don't need to ask money for soon after an event. Rather, government can release the financial resources to the vulnerable communities.

Jess: This is so interesting. And obviously, I'm from the United States, and I know we are one of the countries that needs to pay into the funds for the response to these disasters, these triggered events. So, have you seen any progress in getting the wealthier nations to actually make their contributions to the fund, or is that happening at this COP 28 event?

Hafij: This is a very different fund. That's why World Bank is going to work next few months after this COP. There is a, there will be a vote from this fund, and that vote, and World Bank will work together to design the fund, that can help the vulnerable communities. Now, the source. Who gonna pay for this fund? So, it was a bit difficult issue. Nobody wanted to pay for this one, because, you know, loss and damage is sensitive, and it involves the liability and compensation issues. So, developed country were not really willing to pay for this. So, during the negotiation of the transitional committee, we found that developed country are not really willing to pay. Even some other developing countries who are in a position to do so, they're also not agreed to pay, because nobody wants to take the obligation, unfortunately. So far, we know the European Union is going to make substantial pledges for this fund at COP 28. Even U.S., John Kerry said that they're gonna place some millions of dollar, which is now already criticized. Millions of dollars are not enough for this fund. We need trillions of dollar for this fund. So, so far, I know the, during the preparatory meeting, COP president is really interested to operationalize, not only to operationalize the fund at this COP, also to get pledges, at least $500 million, so that it can operationalize very, very soon.

Jess: We don't need millions. Millions, there's not gonna do it. This is such a massive scale. And I had a question about that, too. So, when you're looking at damages and harms from climate change, sea level rise is one that we're feeling here in the United States. I know in Bangladesh that's a concern as well. For example, in the U.S., we had superstorm Sandy in 2012, and that caused over $8 billion in damages. And that's what it would have know, more than what it would have caused without sea level rise. So, we can't just put dollar amounts on things. Like Vanuatu, for example, is gonna lose not just their land, but their whole culture. So, how do you quantify losses of things that don't have a price tag on them?

Hafij: That's a very important question. And now, how to quantify the loss and damage. You already said that economic loss and damage. Also non-economic loss and damage, like loss of values, culture, heritage. The migration is the classical example for loss and damage. Migrated people are, they're losing their home state. They're losing their culture, values. So, how to compensate for this? It's very easy. We don't need to be a lawyer to identify the policy response to loss and damage. That must be compensation. However, we, the parties at UNEP-CCC, particularly for the Paris Agreement, we agreed to avoid the discussion on liability and compensation at the policy level, UNEP-CCC level. However, it must be obligatory. Because to response the loss and damage, we need to take the obligation in terms, based on the historical responsibility. So, what you said about the quantification, to quantify the loss and damage, we need to develop some sort of innovative tools and methodologies.

I'm very happy to let you know that there is an executive committee, I said. Executive committee is now working, in collaboration with some of the expert groups, to develop some sort of tools and methodologies that would be really helpful to assess or quantify the loss and damage. But those tools and methodologies that going to be developed by the executive committee of the Warsaw International Mechanism, that needs to be translated, taking into account the national circumstances. For example, Bangladesh, if we consider a global standard tools and methodologies, we need to translate it considering our circumstances. And national governments needs to take initiative to assess the loss and damage. Because assessment is quite important. Based on the assessment, we can identify the right approaches to deal with loss and damage. Once we can identify the right approaches, then you need to take some initiatives to institutionalize those approaches. Finally, you need some legal mandates, to assist the communities. Also policymakers, to act at the national level.

Jess: I really appreciate you explaining it that way. And so, I wanted to ask you, if there is one thing that you'd like everyone in the more affluent nations to understand about how human-caused climate change is affecting the least-developed countries, what was that one thing you want us to understand? What is that?

Hafij: Not only the least developing countries, like Bangladesh, is facing loss and damage. Loss and damage are facing all over the world. You talked of the Sandy in U.S. U.S. people also going to face huge, massive loss and damage. But why the least developing countries are most vulnerable? You know, in terms of capacities, in terms of financial resources, these least developing countries are really vulnerable. Not only the geographical locations, but also in terms of capacities and financial resources, technical capacities, these least developing countries are particularly vulnerable. That's why transitional committee for the loss and damage fund, they recommended the particular circumstances of small-island developing countries, also the least developing countries. I n the fund, the transitional committee recommended minimum percentage from the floor that would be allocated to the Cs in LDCs. That's very important.

Hafij: I would like to add that the, during the works of the transitional committee, the transitional committee members from the developed countries, they wanted to particularly establish this fund Cs and LDCs. However, some other developing countries argued that they're also vulnerable. Yeah, I do agree with the, like, Pakistan. They face the huge flood, so they know the reality of loss and damage. Like, Pakistan, some other developing countries also vulnerable. Considering these vulnerability, transitional committee recommended that the board of this fund would develop further guidelines how these fund to be utilized to support the vulnerable developing countries. So, six LDCs, also, other vulnerable developing countries, would be eligible to access from this fund.

Jess: It sounds like there have been a lot of thoughts and plans going into this to make sure that the countries that need it the most are going to be able to get the help. Now we just have to put the money in the fund, and make sure that works. And so, there is one question that I like to ask all of my guests on our podcast. And so, you know that I'm with the Union of Concerned Scientists. And so, my question to my guests is always the same. In your case, it's, "Hafij, why are you concerned?"

Hafij: Okay. Why I'm concerned, actually, because I'm from Bangladesh, from one of the most vulnerable countries. So, even I'm a negotiator, but I'm really happy to introduce myself as a community lawyer. I'm working with the vulnerable communities, it is now around 20 years. I know the reality. So, all of the negotiation sessions, I was arguing from, our negotiator from developed country, he was talking, "I need to go back to the capital. So, I cannot commit without the consent of the capital." Then I was talking, "Yes, I do agree. You need to go back to your capital, but I need to go back to my communities." So, this is my moral obligation, ethical obligation, to act for my vulnerable communities. To be honest, I work for loss and damage from my heart. So, it's my very emotional and sensitive issue. So, and that's why, that's my concerns, actually.

Jess: That is actually incredibly powerful. I'm really glad that you shared that concern, because I think it's easy for us who aren't at COP, and who aren't impacted by these events, if you just watch it on the news, it doesn't seem real. But when you hear someone say, "This is my community, this is my home," that helps put a human face on it, and it makes it easier to understand and relate to. So, I think the work you're doing is amazing, and is there anything that you're really hoping will happen at this COP meeting?

Hafij: I will tell you about the hope later, but before that, I would like to request. I think every concerned citizen of the globe, we need to think about it. We need to take some responsibilities, particularly the concerned citizen from the developed countries, they need to put pressure their government, so that they take some obligations to pay for, not only for loss and damage, but first of all, they need to take high, ambitious target for mitigation. Because mitigation is the best option to avoid the loss and damage. You know, Jess, we are talking about the loss and damage fund. If it is their money, money cannot help you at all, to some extent. So we need to mitigate first. Then, of course, adaptation. Adaptation can minimize the potential risk of the loss and damage. So, adaptation is the second priority. Finally, the loss and damage. I always do say litigation, adaptation, loss and damage, it's a continuum. I hope that parties here at COP 28 I s going to adopt the recommendations put forward by the transitional committees as it is, and to take further initiatives to operationalize the fund by next year. And by this time, I hope that, particularly, developed country parties make some substantial pledges here at COP 28, so that immediately, we can operationalize this fund, and to support the millions of vulnerable communities and states from all over the world.