While the UN Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol do not address the injurious consequences of climate change, loss and damage has been under negotiation in the international climate process for many years.
Largely based on mitigation and adaptation, today’s international climate policy aims to prevent dangerous anthropogenic interference with the climate system. Although mitigation and adaptation could significantly reduce the risks of climate change, they cannot eliminate all climate change impacts, and some degree of harm is unavoidable.
While the UN Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol do not address the injurious consequences of climate change, loss and damage has been under negotiation in the international climate process for many years, with the call for the need to address unavoidable impacts of climate change dating back to the early 1990s. Originally introduced by small island developing States (SIDS), the concept of loss and damage has gradually gained support from other vulnerable countries, notably the African Group, the like-minded developing countries (LMDCs) and the least developed countries (LDCs), among others. This policy update discusses how the issue of loss and damage has been addressed in the international climate negotiations up to the 20th session of the Conference of the Parties (COP) in Lima, including through the establishment of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (hereinafter: Warsaw Mechanism for Loss and Damage) and the ongoing debate on whether or not loss and damage should have a distinct place in the new global climate agreement.
While there is no commonly-agreed definition of loss and damage, it is understood broadly to refer to negative residual impacts of climate change, such as those resulting from extreme weather events or slow onset events, that cannot be avoided through mitigation and adaptation efforts. The Intergovernmental Panel on Climate Change (IPCC), whose role it is to “assess on a comprehensive, objective, open and transparent basis the scientific, technical and socio-economic information relevant to understanding the scientific basis of risk of human-induced climate change, its potential impacts and options for adaptation and mitigation,” has concluded, with high confidence, that, “without additional mitigation efforts beyond those in place today, and even with adaptation, warming by the end of the 21st century will lead to high to very high risk of severe, widespread and irreversible impacts globally.”The IPCC has also found that, although adaptation can reduce the risks of climate change impacts, there are limits to its effectiveness, observing that some risks from climate change are unavoidable, even with mitigation and adaptation.
While there is no mention of loss and damage in the UNFCCC or the Kyoto Protocol, the importance of the issue has been repeatedly recognized by the COP. Already in 2007, under the Bali Action Plan, COP 13 agreed to address enhanced action on adaptation, including consideration of “disaster reduction strategies and means to address loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to the adverse effects of climate change.” In 2010, COP 16 established a work programme on approaches to address loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to the adverse effects of climate change. In 2011, COP 17 requested the Subsidiary Body for Implementation (SBI) to continue the implementation of the work programme and agreed on activities to be undertaken under it. Efforts under the work programme were structured around three thematic areas: assessing the risk of loss and damage associated with the adverse effects of climate change and current knowledge on the same; a range of approaches to address loss and damage, including impacts related to extreme weather events and slow onset events, taking into consideration experiences at all levels; and the role of the Convention in enhancing implementation of approaches to address loss and damage. Various activities under these three thematic areas, including the preparation of technical papers, submissions by parties and other stakeholders, and the organization of expert meetings, took place throughout 2012. At the end of 2012, in Doha, COP 18 agreed to establish, at COP 19, institutional arrangements, such as an international mechanism, including functions and modalities, to address loss and damage in developing countries that are particularly vulnerable to the adverse effects of climate change. Such functions and modalities were to be elaborated in accordance with the role of the Convention and include: enhancing knowledge of comprehensive risk management approaches; strengthening dialogue with relevant stakeholders; and enhancing actions and support to address loss and damage.
A breakthrough in the negotiations came in 2013, when COP 19 established the Warsaw Mechanism for Loss and Damage under the Cancun Adaptation Framework to address loss and damage associated with extreme weather and slow onset events in developing countries that are particularly vulnerable to the adverse effects of climate change. The preambular part of the COP decision contains an acknowledgement that loss and damage “includes, and in some cases involves more than, that which can be reduced by adaptation.” The COP also decided to review, at COP 22, the Warsaw Mechanism for Loss and Damage, including “its structure, mandate and effectiveness.” Further, the COP established an Executive Committee of the Warsaw Mechanism for Loss and Damage and requested it to report annually to the COP through the Subsidiary Bodies. The COP tasked the Warsaw Mechanism for Loss and Damage to, inter alia: enhance knowledge and understanding of comprehensive risk management approaches; strengthen dialogue, coordination, coherence and synergies among relevant stakeholders; and enhance action and support, including finance, technology and capacity-building.
In 2014, the interim Executive Committee adopted an initial two-year workplan. It also agreed to develop a five-year rolling workplan building on the results of the two-year workplan to continue guiding the implementation of the functions of the Warsaw Mechanism for Loss and Damage, for consideration at COP 22 to take place in 2016 – the year of the Mechanism’s mandated review and one year after a new global climate agreement is scheduled to be adopted in Paris.
At COP 20 in Lima, parties, inter alia: approved the Warsaw Mechanism Executive Committee’s initial two-year workplan; agreed on the Executive Committee membership; decided that the Executive Committee, at its first meeting to be held no later than March 2015, shall adopt its rules of procedure and begin implementing its workplan; and agreed a number of procedural issues, including the ability of the Executive Committee to establish expert groups, frequency of meetings and observer participation.
While the work of the Executive Committee of the Warsaw Mechanism for Loss and Damage appears to be clearly set out, many developing countries consider the issue of loss and damage far from solved. Whereas they welcome the work under the Warsaw Mechanism for Loss and Damage, they also see a prominent place for loss and damage in the 2015 agreement. Many developed countries, however, have cautioned against “duplication of work,” emphasizing the role of the existing Mechanism. For example, as the issue of legal parity between different components of the future agreement was debated at COP 20, developing countries repeatedly warned against a “mitigation-centric” approach to Intended Nationally Determined Contributions (INDCs) and urged for a balanced reflection of INDCs’ various elements. It was of particular importance to AOSIS and the LDCs, among others, that loss and damage be reflected as a separate element of the future agreement.
The Lima Call for Climate Action adopted by COP 20 refers to the Warsaw Mechanism for Loss and Damage in the preamble, welcoming the progress made in Lima towards its implementation. Following the adoption of the relevant decision by the COP, Tuvalu, on behalf of the LDCs, made a statement requesting that it be recorded in the report of the meeting. He spoke about the reference to the Warsaw Mechanism for Loss and Damage in the decision’s preamble, and the paragraph, in which the COP “decides that the protocol, another legal instrument or agreed outcome with legal force under the Convention applicable to all Parties shall address in a balanced manner, inter alia, mitigation, adaptation, finance, technology development and transfer, and capacity-building, and transparency of action and support.” He stressed that the preambular text on the Warsaw Mechanism for Loss and Damage, in conjunction with “inter alia” in the operative paragraph listing INDCs components, is, in the LDCs’ understanding, a “clear intention” that the new agreement will “properly, effectively and progressively” address loss and damage. Analogous statements have been made by parties before. For example, upon signature of the Convention in 1992, several SIDS made a declaration they perceived as necessary to preserve their rights under the law of State responsibility, in which they stated that the Convention did not prejudice the rules of international law on State responsibility and that none of its provisions could be interpreted as derogating from the principles of general international law. While legally redundant, such declarations reaffirm Parties’ positions and interpretations of agreed text, maintaining their relevance and visibility.
With the eighth part of the second session of the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), held in Geneva from 8-13 February 2015, now concluded, it is abundantly clear that many developing countries, including the LDCs, SIDS and LMDCs, see loss and damage as a separate element of the new agreement, on par with mitigation, adaptation and means of implementation. It remains to be seen, however, what role loss and damage will play in the Paris agreement, given some developed countries’ reluctance to “duplicate efforts” under the Warsaw Mechanism for Loss and Damage.
 J.P. Hoffmaister, M. Talakai, P. Damptey & A. Soares Barbosa, ‘Warsaw International Mechanism for loss and damage: Moving from polarizing discussions towards addressing the emerging challenges faced by developing countries,’ 6 January 2014, available at: <http://www.lossanddamage.net/4950>
 Principles Governing IPCC Work (1998), as amended in 2003, 2006 & 2012. Available at: <www.ipcc.ch/pdf/ipcc-principles/ipcc-principles.pdf>
 Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, UNFCCC Decision 1/CP.16 (2010), para. 26.
 Approaches to address loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to the adverse effects of climate change to enhance adaptive capacity, UNFCCC Decision 3/CP.18, 28 February 2013, para. 9.
 Warsaw international mechanism for loss and damage associated with climate change impacts, UNFCCC Decision 2/CP.19 (2013), para. 1.
 Report of the Executive Committee of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts, FCCC/SB/2014/4, annex II.
 Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts, UNFCCC Decision -/CP.20, paras 1, 5-8, 12-14.
 See ENB Summary and analysis of the Lima Climate Change Conference: 1-14 December 2014, Vol. 12 No. 619.
 See declarations made upon signature of the UNFCCC by Nauru, Tuvalu, Kiribati, Fiji and Papua New Guinea, available at: <http://unfccc.int/essential_background/convention/items/5410.php>.