Loss, Damage and Responsibility after COP21: All Options Open for the Paris Agreement
| DOI | http://doi.org/10.1111/reel.12172 |
| Author | Roda Verheyen,M.J. Mace |
| Date | 01 July 2016 |
| Published date | 01 July 2016 |
Loss, Damage and Responsibility after COP21: All
Options Open for the Paris Agreement
M.J. Mace* and Roda Verheyen
The issue of ‘loss and damage’has proven to be a
legally and politically challenging one within the inter-
national climate change regime. This article presents a
brief history of the issue, and reviews related Paris
outcomes, focusing on the issues of compensation and
liability, governance, financial support, insurance and
displacement. It concludes that despite paragraph 51
of Decision 1/CP.21 adopting the Paris Agreement, all
options remain open for the development of a system
under the climate regime that can address the
underlying concerns raised by small island developing
States and others in calling for a system of compensa-
tion and liability. In the context of the 1.5 °C tempera-
ture limit and increasing climate impacts, this article
also highlights the need for the Warsaw International
Mechanism to play an active role in quantifying the
scale of loss and damage that is projected from
human-induced climate change in different regions
and in different national contexts, over different time
frames and at different emission pathways, and in
sharing developments in attribution science, to help in
the design of approaches to address loss and damage
that are suited to assisting the most vulnerable devel-
oping country parties and to underscore the need for
urgent emission reductions.
INTRODUCTION
The issue of ‘loss and damage’–how best to address
the permanent and irreversible impacts of human-
induced climate change on particularly vulnerable
developing countries –has proven to be a legally and
politically challenging one over the years. Recognition
of this issue in the Paris Agreement
1
was a key out-
come for vulnerable developing countries. Neverthe-
less, not all of the Parties' underlying concerns are
resolved with the inclusion of Article 8 in this legally
binding treaty. Open issues include the implications of
paragraph 51 of Decision 1/CP.21
2
for the evolution of
the climate change regime and for the work of the
Warsaw International Mechanism (WIM); the
relationship between loss and damage and adaptation;
the source of financial and technical resources to
address loss and damage; and the role of the WIM
after the adoption of the Paris Agreement.
This article starts with a brief history of loss and dam-
age under the United Nations Framework Convention
on Climate Change (UNFCCC). It then sets out the
central elements of the WIM’s functions, tasks and its
‘action areas’. Next, the article reviews Paris negotiat-
ing positions and outcomes on loss and damage,
focusing on: contentious paragraph 51 addressing
compensation and liability; the relationship of the
UNFCCC Conference of the Parties (COP) and the
COP serving as Meeting of the Parties to the Paris
Agreement (CMA) in connection with the WIM after
Paris; financial support to address loss and damage;
tasks given to the WIM in connection with insurance
and displacement; and the possible role of the WIM
going forward. The article moves on to consider the
significance of the Paris Agreement’s adoption of an
enhanced 1.5 °C long-term temperature limit in the
context of minimizing loss and damage, and discusses
historical responsibility for emissions and temperature
rise, developments in attribution science, and the
implications of the Paris outcomes for progress on loss
and damage going forward, now that the WIM is
firmly placed within the climate regime to ‘address’
loss and damage on behalf of all parties to the Con-
vention and the Paris Agreement.
We conclude that despite the adoption of paragraph
51, all options remain open for the development of a
system under the climate regime that can address the
underlying concerns raised by small island developing
States (SIDS) and others in calling for a system of
compensation and liability. In the near term, rather
than emasculating the WIM, paragraph 51 may actu-
ally serve to liberate the WIM, allowing it to draw
together information that can help policy makers in
particularly vulnerable developing countries better
understand the timing and scale of projected impacts
and the loss and damage expected to result in differ-
ent regions and national contexts, filling an important
information gap in the regime. Over time, the door
remains open to the development of a regulatory sys-
tem within the regime that can provide the technical
and financial support needed to address resulting
* Corresponding author.
Email: mjmace02@yahoo.com
1
Paris Agreement (Paris, 12 December 2015; not yet in force).
2
UNFCCC, Decision 1/CP.21, Adoption of the Paris Agreement (UN
Doc. FCCC/CP/2015/10/Add.1, 29 January 2016).
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197
RECIEL 25 (2) 2016. ISSN 2050-0386 DOI: 10.1111/reel.12172
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Review of European Community & International Environmental Law
needs, including one that links anthropogenic emis-
sions more directly to the provision of support, if that
is a direction in which the parties are prepared to
move.
BRIEF HISTORY OF LOSS AND
DAMAGE IN THE CLIMATE REGIME
There is no precise definition of the concept of ‘loss
and damage’in the Convention or Paris Agreement,
much in the same way that there is no definition of
‘adaptation’.
3
However, it is well understood that this
phrase relates to the desire of vulnerable countries,
and especially SIDS, to secure formal recognition from
the international community that there are adverse
impacts of human-induced climate change that cannot
be avoided by mitigation or adaptation, or that will
not be avoided in the future by adaptation due to
insufficient resources, and that must be addressed at
the international level under the climate regime due
to the equities involved.
4
Discussions on how best to address the permanent
and irreversible impacts of climate change have been
a feature of the climate regime since its very begin-
ning. The phrase ‘loss and damage’, and its associa-
tion with insurance and insurance-related tools and
approaches, goes back to a proposal made by the
Alliance of Small Island States (AOSIS) in 1991 when
the UNFCCC was being negotiated. At that time,
AOSIS, a newly formed group of small island nations,
proposed the establishment of an international insur-
ance pool as a ‘collective loss-sharing scheme’to
‘compensate the most vulnerable small island and
low-lying coastal developing countries for loss and
damage arising from sea level rise’.
5
Funding for this
pool was to come from assessed contributions ‘ac-
cording to a formula modelled on the 1963 Brussels
Supplementary Convention on Third Party Liability
in the field of Nuclear Energy’, with 50% based on
parties’relative contributions to emissions in the year
prior to a ‘contribution year’, and 50% based on par-
ties’relative shares of global gross national product
in the year prior to the contribution year.
6
These
accumulated resources would be used to cover a fixed
period of insurance payouts. If funds were insuffi-
cient to cover claims, they would be paid out on an
equitable basis.
AOSIS’s proposed Insurance Annex was not
accepted and did not become part of the Conven-
tion. However, markers of this debate are found in
the Convention’s reference to ‘insurance’in Article
4.8, as a measure that may be necessary under the
Convention ‘to meet the specific needs and concerns
of developing country Parties arising from the
adverse effects of climate change’,
7
and in Article
4.4’s commitment by developed countries to ‘assist
the developing countries that are particularly vul-
nerable to the adverse effects of climate change in
meeting the costs of adaptation to those adverse
effects’.
8
At the first UNFCCC COP in 1995, agreement was
reached on initial guidance to the Convention’s Finan-
cial Mechanism, setting out a staged approach to adap-
tation funding as follows:
9
Stage I: Planning, which includes studies of possible impacts
of climate change, to identify particularly vulnerable coun-
tries or regions and policy options for adaptation and appro-
priate capacity-building;
3
Article 1 of the United Nations Framework Convention on Climate
Change (New York, 9 May 1992; in force 21 March 1994) (‘UNFCCC’)
defines ‘adverse effects of climate change’ as ‘changes in the physical
environment or biota resulting from climate change which have
significant deleterious effects on the composition, resilience or
productivity of natural and managed ecosystems or on the operation
of socio-economic systems or on human health and welfare’. See also
UNFCCC, Non-economic Losses in the Context of the Work Pro-
gramme on Loss and Damage (UN Doc. FCCC/TP/2013/2, 9 October
2013), at paragraph 32 (‘[l]oss and damage describes the impact
associated with the adverse effects of climate change, including those
related to extreme events and slow onset events such as sea-level
rise, increasing temperatures, ocean acidification, glacial retreat and
related impacts, salinization, land and forest degradation, loss of
biodiversity and desertification’).
4
See B. Ohdedar, ‘Loss and Damage from the Impacts of Climate
Change: A Framework for Implementation’, 85:1 Nordic Journal of
International Law (2016), 1, at 2. See also M. Schaeffer et al.,Loss
and Damage in Africa (United Nations Economic Commission for
Africa and African Climate Policy Centre, 2014), at 15; and M. Schaef-
fer et al.,Africa Adaptation Gap Technical Report (United Nations
Environment Programme (UNEP), 2013), at xi, Figure ES.2 (both
describing ‘residual damages’ as loss and damage remaining after
adaptation, or as damages not avoided by adaptation).
5
See Intergovernmental Negotiating Committee (INC), Preparation of
a Framework Convention on Climate Change, Set of Informal Papers
Provided by Delegations, Related to the Preparation of a Framework
Convention on Climate Change (UN Doc. A/AC.237/Misc.1/Add.3, 18
June 1991), at 18–32 (Paper No. 16: Vanuatu on behalf of AOSIS);
and INC, Report of the Intergovernmental Negotiating Committee for a
Framework Convention on Climate Change on the Work of its Fourth
Session, held at Geneva from 9 to 20 December 1991 (UN Doc. A/
AC.237/15, 29 January 1992), at 20, 21, 46, 80, 126–130 (Annex V
Insurance Mechanism). The text of the proposed AOSIS Insurance
Annex can be found at: <http://unfccc.int/resource/docs/a/15_2.pdf>.
6
Ibid., A/AC.237/15, at 127–129. J. Linnerooth-Bayer, M.J.Mace and
R. Verheyen, ‘Insurance-Related Actions and Risk Assessment in the
Context of the UNFCCC ’ (May 2003), found at: <http://unfccc.int/files/
meetings/workshops/other_meetings/application/pdf/background.pdf>.
7
UNFCCC, n. 3 above, Article 4.8.
8
Ibid., Article 4.4.
9
UNFCCC, Decision 11/CP.1, Initial Guidance on Policies, Pro-
gramme Priorities and Eligibility Criteria to the Operating Entity or
Entities of the Financial Mechanism (UN Doc. FCCC/CP/1995/7/
Add.1, 6 June 1995), at paragraph 1(d)(i–ii). For more on this and
financial obligations under the UNFCCC, see R. Verheyen, Climate
Change Damage in International Law (Brill, 2005), at 130ff. and 160ff.
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M.J. MACE AND RODA VERHEYEN RECIEL 25 (2) 2016
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