International
Finance for Loss and Damage
Establish mechanisms within United Nations institutions such as the United Nations Framework Convention on Climate Change (UNFCCC) as well as multilateral or bilateral funds such as the Green Climate Fund that deliver financial support and compensation to frontline communities for climate impacts (loss and damage).
What does this look like?
Establish a Loss and Damage financing facility within or across UN institutions, which could include the United Nations Framework Convention on Climate Change (UNFCCC). This facility should be financed by wealthy countries and support developing countries experiencing climate disasters.
The guidelines for its establishment should include:
1) requirements for wealthy/Northern countries to contribute to this facility annually in line with their fair share of historical emissions.
Allocating an adequate percentage of finance governments collect through liability measures taken nationally- including litigation,[link to investigate and sue section]fines, climate damages taxes [link to climate damages measure under national] and other measures detailed in this roadmap—towards a nation’s contribution to the Loss and Damage financing facility.
2) requirements that funding (whether from the financing facility directly or via national funds) be distributed to and in the control of communities enduring the greatest impacts of climate change.
The governance of this facility must:
Include strong requirements to protect against the risk for conflicts of interests to unduly influence how the finance is distributed.
Centre the representation and decision-making of communities in the Global South, including women, indigenous peoples, youth, and local communities.
Allocate a proportion of multilateral and bilateral funds that finance climate actions to go towards mandatory Loss and Damage funding.
Examples of relevant funds include the Green Climate Fund (GCF), Climate Investment Funds (CIF), Global Environment Facility (GEF), and the Adaptation Fund.
Liability at the International Criminal Court
Advance laws beginning at the International Criminal Court to protect the earth by criminalizing ecocide as the fifth “Crime Against Peace”, allowing for legal claims against corporations for breaching these laws and committing ecocide.
What does this look like?
Amend the Rome Statute of the International Criminal Court to formally recognize loss, damage, or destruction to ecosystems or the natural world ( or ‘ecocide’) as a crime under the International Criminal Court (ICC), as the island nations of Vanuatu and Maldives have called for, and as previously proposed in 2010 to the International Law Commission (ILC).
The Rome Statute is one of the most powerful documents in the world, assigning “the most serious crimes of concern to the international community as a whole” over and above all other laws. Crimes that already exist within the jurisdiction of the International Criminal Court under Article 5 of the Rome Statute are known collectively as Crimes Against Peace. They are currently:
1. The Crime of Genocide
2. Crimes Against Humanity
3. War Crimes
4. The Crime of Aggression
The inclusion of Ecocide as a crime in international law prohibits mass damage and destruction of the Earth and creates a legal duty of care for all inhabitants that have been or are at risk of being significantly harmed due to Ecocide. The duty of care applies to prevent, prohibit and pre-empt both human-caused Ecocide and natural catastrophes. Where Ecocide occurs as a crime, remedy can be sought through national courts and the International Criminal Court (ICC) or a similar body.
To create an international crime of Ecocide, it only takes one Member State of the Rome Statute to call for an amendment. This triggers a process: once 83 States ratify the amendment to include Ecocide as a crime, it becomes binding. Member States are countries who have signed and ratified the Rome Statute; there are currently 123 State Parties.
Ensure that the definition of ecocide addresses not only environmental and climate action crimes, but crimes committed against environmental defenders.
Formally recognize transnational corporations’ role in driving ecocide, and try them at the International Criminal Court when they are accused of violating these laws.
Formalize an international process at the International Criminal Court for Global South countries and communities where transnational corporations and their subsidiaries are operating to seek compensation or reparations for the crimes these corporations have committed.
Through the United Nations Framework Convention on Climate Change and other U.N. institutions, register a formal call to the ICC to recognize ecocide as a crime.
Binding treaty on corporate abuse and human rights
Establish a legally binding instrument, currently under development at the United Nations Human Rights Council, to regulate the activities of transnational corporations and other businesses via international human rights law.
What does this look like?
Governments are currently negotiating the text of a draft treaty on business and human rights. This instrument should:
Formalize the primacy of human rights and the rights of nature (see below) over and above international trade and commerce and any associated agreements or treaties.
Require polluting corporations to remediate and restore the environments they have polluted, damaged, or adversely impacted.
Establish the direct obligation for transnational corporations—as well as their subsidiaries—to respect human rights and socio-economic rights.
Establish a state’s obligation to protect human rights and the rights of the nature.
Adopt guidelines that prohibit international economic and international financial institutions from giving money toward or participating in activities that directly or indirectly enable corporations to continue to act with impunity.
Prohibit international financial institutions from funding the fossil fuel industry and other polluting industries.
Prohibit subsidies from going to the fossil fuel industry.
Adopt measures to withdraw consent to Investor-State Dispute Settlement (ISDS), to limit immediate exposure to investor lawsuits.
Suspend all trade and investment treaty negotiations.
Expand these measures to default on the payment of outstanding debts as a result of ISDS awards.
Revoke the immunity of international financial institutions such as the World Bank’s International Finance Corporation (IFC), following the lead of the U.S. Supreme Court’s ground-breaking decision that such institutions can be held liable for environmental damages, following the claim brought by Indian fishermen.
To understand why these measures are necessary to be able to meaningfully advance liability and to counteract attempts by corporations to avoid liability, read this case study on Chevron and Texaco in Ecuador. [when user clicks on this, it links to the Chevron case study (text at the very bottom of this doc), then with the option to zoom back out again]
Several jurisdictions have developed versions of regimes that enshrine the rights of nature, including Ecuador, Bolivia, New Zealand, India. Not all of these regimes take nature as a whole to be a juridical person; in some cases, parts of nature—for example, a river or a species—are granted personhood or are otherwise equipped to litigate their own rights. See here [when user clicks on ‘here’ it zooms into the case study on Establishing primacy of nature’s rights at the bottom] for more information on the measures advanced in these countries.
Fossil fuel non-proliferation
Establish international mechanisms such as a fossil fuel non-proliferation treaty, via new or existing regimes, to end the proliferation and use of fossil fuels, hold the industry liable for its abuses, and use liability to help fund a just transition centred on real climate solutions.
What does this look like?
There are a variety of possible avenues for establishing international mechanisms to stop fossil fuel non-proliferation. Regardless of the forum and process, such mechanisms should:
Base these efforts on clear equity principles, and new forms of international cooperation, building on the experience of other international regimes such as the nuclear non-proliferation regime.
Use funds garnered through liability measures to help finance such a transition.
End all new exploration and production of coal, oil and gas, effectively immediately.
Phase out existing stockpiles and production of fossil fuels in line with keeping global temperature rise to 1.5 degrees Celsius, and in line with the principles of a just transition for every worker, community, and country.
Draw from research that demonstrates that phasing out fossil fuel supply should be prioritized in wealthy, diversified economies that are in the best position to lead in large-scale transformative action right now with the least social cost. These include countries like Canada, the U.K., U.S., and Norway.
People’s monitoring body for polluting industry activity
Create a democratically controlled, independent formal monitoring body that tracks, documents, and publicizes the activities of polluting corporations.
What does this look like?
While there are a variety of initiatives that monitor and attribute the greenhouse gas emissions that can be directly attributed to specific corporations at source, establish a body to focus specifically on closely monitoring:
Indirect emissions that occur throughout the value chain of a corporation (sometimes referred to as Scope 3 emissions).
Identifying actions, inactions, and business decisions of corporations that contribute to or have the consequence of violating environmental and human rights
Attempts by polluting industries and corporations to advance climate change denial, deception, greenwashing, and interference with policymaking on all levels of governance, and track and trace the finances spent toward these activities
This monitoring body should be housed independently of multilateral or bilateral institutions (i.e. a monitoring body of the people), and should be comprised of independent experts and representatives of frontline communities.
Monitoring activities should include unannounced and periodic field audits to be able to more accurate identify and access true environmental and social impact of polluting corporations’ practices.
Independent international expert committee on liability
Establish a democratically controlled, independent international liability expert committee to develop guidelines that support the drafting and implementation of binding national, sub-national, and local legislation that advances liability mechanisms.
What does this look like?
This expert group should be housed independently of multilateral or bilateral institutions), and should be comprised of independent experts, attorneys, and representatives of frontline communities.
Ensure representation by people on the front lines of the climate crisis who hold first-hand expertise on polluting industries’ abuses.
Ensure the work of this committee is bound by timelines that match the urgency of the need.
Protect the work of this committee from the undue influence and manipulation of polluting corporations and industries, or those directly or indirectly representing them.