Damaged, but not yet lost: exploring gaps in loss and damage mitigation, and the necessity of the Warsaw International Mechanism for Loss and Damage and its review at COP22

By Caitlin Petersen

Caitlin attended the 2016 UNFCCC Conference of Parties (COP22) where she represented Central Queensland University. Caitlin is studying a Bachelor of Business/Bachelor of Laws.

Abstract

Climate change is having a clear and devastating impact on the environment with the global mean sea level predicted to increase by 3.4(±0.4)mm/year (Beckley et al. 2010; Beckley et al. 2015). Whilst we are all experiencing the effects of climate change, the degree of loss and damage experienced by populations is disproportionate. Global rising sea levels mean that vulnerable coastal communities are experiencing the intrusion of saltwater, and whilst many communities adopt adaptive strategies, these adaptations may not be sufficient in mitigating loss and damage (Warner & Van der Geest, 2013). Three main gaps in mitigation of loss and damage will be explored in this paper: insufficient adaptive strategies, adoption of no adaptive strategies, and adoption of erosive adaptive strategies. In light of the revision of the Warsaw International Mechanism for Loss and Damage at COP22 (UNFCCC, 2014. para 15), the following recommendations have been made to better mitigate loss and damage experienced by these vulnerable populations.

Policy Recommendations

  1. More emphasis needs to be placed upon facilitation of adaptive strategies rather than provision of information.
  2. Building social resilience, community education and preparedness, and creation of supportive environments, will all assist in preventing erosive adaptive strategies and ensuring affective adaptive strategies are implemented. These action areas can be included under the Mechanisms scope to “provide technical guidance and support” (UNFCCC, 2013, p. 3).  
  3. Preservation of cultural and natural heritage should be considered for inclusion into the Mechanism
  4. More appropriate language in drafting of international agreements is needed in order to prevent intentional non-compliance, particularly in relation to funding arrangements.  
  5. The alternative funding strategies outlined within article 8 of the Paris Agreement should be incorporated into the Warsaw International Mechanism using appropriate language that would make the funding arrangements binding rather than suggestive.

Background and Context

Policy involving loss and damage in relation to climate change has proved both legally and politically challenging (Mace & Verheyan, 2016). Despite developing nations wanting the issue addressed through the United Nations Framework Convention on Climate Change(UNFCCC) and in earlier Conference of Parties (COP) conferences, it was not until 2009 at COP16 in Cancun that a working plan was developed to consider ways to address loss and damage (Vincent & Cull, 2014; UNFCCC, 2010, para. 25). Developed countries have been resistant towards policies addressing loss and damage, due to concerns with issues of liability and compensation (Mace & Verheyan, 2016). The Warsaw International Mechanism for Loss and Damage was however eventually introduced in 2013 at COP19, to address loss and damage associated with climate change (UNFCCC, 2014). Nine action areas were addressed in the policy with particular emphasis being put upon vulnerable populations, though the policy itself is largely focused on gathering information, and mediating and facilitating actions to mitigate loss and damage.

In 2015 at COP21 in Paris, the International Mechanism was included into the Paris Agreement under article 8. This inclusion was considered controversial with developing countries seeking the inclusion of liability and compensation, whilst other nations sought to completely remove loss and damage from COP policy. As any inclusion of liability or compensation into this binding agreement would have led to a number of countries refusing to ratify the agreement (Mace & Verheyan, 2016), a compromise was reached where the Warsaw Mechanism was included into the agreement (UNFCCC, 2015. article 8), but with a caveat stating:

‘…that Article 8 of the Agreement does not involve or provide a basis for any liability or compensation.’ (UNFCCC, 2015. para 52)

Furthermore, COP22 will “… review the Warsaw international mechanism, including its structure, mandate and effectiveness…” (UNFCCC, 2014. para 15). As demonstrated in previous COP meetings, the ability of the Annex I countries to dominate important decision making can lead to some viewpoints being given less priority or being completely overlooked (Mace & Verheyan, 2016; hugge, 2016). Following the decision at COP20 in Lima, the executive committee of the mechanism shall be made up from ten Annex I countries and ten non-Annex I countries (UNFCCC, 2015. para 5). Whilst this decision has seen more collaboration on some issues, equal and fair representation is still an issue for the progression of climate change policy that will continue to impact on decisions relating to loss and damage moving forward.

Issues in Mitigating Loss and Damage Caused by Climate Change

The burden of loss and damage is a complex issue that affects vulnerable developing nations at a much higher rate than other nations, who may be able to implement more effective strategies that often require considerable resources (Warner & Van der Geest, 2015). A number of limits and constraints may exist for populations which restrict their ability to mitigate loss and damage. Three main gaps in mitigation of loss and damage will be explored in this paper; insufficient adaptive strategies, adoption of no adaptive strategies, and adoption of erosive adaptive strategies.

In addressing loss and damage, adoptive strategies may not be sufficient in mitigating the effects of climate change on vulnerable populations (Warner & Van der Geest, 2013). The rise in sea level in Micronesia is 10mm/year, much higher than the global average of 3.4 (±0.4)mm/year (Warner & Van der Geest, 2015 p 55; Beckley et al. 2010; Beckley et al. 2015). In a study of the Kosrae region by Monnereau and Abraham (2013, p. 12), 92% of households who implemented adaptive strategies found them to be ineffective. Additionally, in the study by Kusters and Wangi (2013, p. 2) on the effects of loss and damage in Bhutan, 88% of households found that adaptive strategies were insufficient. In studies such as these it can be shown that the effects of loss and damage caused by climate change are far reaching and increasing (Warner & Van der Geest, 2013). The concern is that climate change is occurring at a rate too quickly for vulnerable populations to cope with, particularly in consideration of the resources and funds often required to affectively mitigate loss and damage (Warner & Van der Geest, 2013). Furthermore, due to resource limits and constraints on the population’s studied, no adaptive measures may be adopted (Warner and van der Geest, 2013). These extreme cases of insufficient adaptation also need to be examined when discussing solutions for mitigating loss and damage. The construction of sea walls for instance, while effective, are a costly measure that may be beyond the reach of developing or vulnerable nations (Warner & Van der Geest, 2013).

Another major issue in the take up of adaptive strategies is the phenomenon of erosive coping strategies. An example of this was when the Nzoia River in Kenya broke its banks. In response people sold assets and removed their children from schooling in order to gain additional income (Opondo, 2013). In the Kosrae case study by Monnereau and Abraham (2013), it was found that important societal practises had been discontinued alongside the destruction of cultural heritage, such as where ancient stone structures have been used to create sea walls. Apart from disruption to education or culture, morbidity and mortality have also been affected. In Northern Gambia, severe drought led many households reducing overall food intake, including the reduction in number and size of meals (Warner & Van der Geest, 2015, pp. 130-131). Erosive coping strategies are rarely effective in the long-term and may cause additional economic or non-economic loss and damage to occur. Consequently, priority should be given in preventing the adoption of erosive adaptive strategies and to mitigate any further damage caused by these behaviours.

Strategies for Loss and Damage Mitigation

The Warsaw International Mechanism is key to mitigating the effects of loss and damage, particularly in vulnerable communities, and a number of current provisions under the agreement can be utilised in order to better achieve this. In examining the Mechanisms scope of “enhancing action and support, including finance, technology and capacity-building” (UNFCCC, 2013, p. 2), more emphasis needs to be placed upon facilitation of adaptive strategies rather than provision of information. As already discussed, adaptive strategies may be difficult to implement and whilst gathering of information is important in finding the most efficient way to mitigate loss and damage, more needs to be done to ensure effective adaptive actions occur. In exploring the Mechanisms scope to “provide technical guidance and support” (UNFCCC, 2013, p. 3); building social resilience, community education and preparedness, and creation of supportive environments, are all areas that may assist in preventing erosive adaptive strategies and ensuring affective adaptive strategies are implemented (Warner & Van der Geest, 2013; Schafer & Kreft, 2014; Mannereau & Abraham, 2013). There are however some areas that are not considered within the Mechanism, such as preservation of cultural and natural heritage (Mannereau & Abraham, 2013), these issues should be examined and then their inclusion into the Mechanism considered at its review in COP22.

In consideration of the difficulties faced by vulnerable communities in mitigating loss and damage, proper funding arrangements will need to be considered in order to prevent further loss and damage caused by insufficient adaptive strategies, and the adoption of evasive adaptive strategies. Funding may be necessary for two purposes: to implement strategies to prevent loss and damage, and to cope and repair when loss and damage occurs. While there has been an unpreparedness to include compensation in international agreements in recent times (Mace & Verheyan, 2016), other financial means are being considered more favourably with the Paris Agreement stating that actions towards loss and damage may include “risk insurance facilities, climate risk pooling and other insurance solutions” (UNFCCC, 2015, article 8(4f)). Whilst the Paris Agreement does not clearly link loss and damage to financial support, it does state that “developed countries shall provide financial resources to assist developing countries with respect to both mitigation and adaptation in continuation of their existing obligations under the Convention” (UNFCCC, 2015, article 9). Understandably, this has caused many to call for funding for loss and damage to come from the adaptation fund rather than a separate entity (Mace & Verheyan, 2016). Whilst this conclusion is usually reached in order to prevent climate litigation in the form of liability or compensation claims, securing funding for loss and damage through the adaptation body may prove effective and more agreeable for developed nations.

The primary concern with this choice of funding arrangement is that loss and damage will eventually be moved into the adaptation body of COP rather than remaining under its own pillar (Mace & Verheyan, 2016). As this paper has emphasised, adaptation may not be sufficient in mitigating loss and damage thus it is crucial these issues be considered separately. In consideration of this, whilst the use of the adaptation fund may be effective in the short term, a long term funding arrangement must be decided upon.

As demonstrated in the Paris Agreement, ambiguity in language used to draft policies is a major issue in ensuring compliance with agreements and securing necessary funding. Generally, countries are technically under no obligation to contribute towards these funding arrangements due to language choices in climate change policies. Ambiguous terms may result in countries ‘side stepping’ annexed agreements (Friends of the Earth – Les Ami(e)s de la Terre v. Canada (Governor in Council) [2008]), and more appropriate language in drafting of international agreements is needed in order to prevent intentional non-compliance. The methods of funding as described within article 8 of the Paris Agreement would be affective in addressing loss and damage (UNFCCC, 2015). By changing the language used within the Warsaw International Mechanism in relation to funding, countries would be bound to contribute towards loss and damage funding in the same manner they are bound to contribute towards other funding agreements.

One of the many reasons alternative funding arrangements are becoming more favourable, is so nations can avoid any liability for loss and damage related to climate change and to prevent compensation cases being brought against them. Despite efforts to keep ‘liability and compensation’ out of international policy agreements, there is a body of law building in regards to climate litigation that may result in more successful compensation cases moving forward. Two major challenges exist in this area of law, causation, where it must be shown that the breach of duty caused the injury and that the injury must have been reasonably foreseeable, and proximity, the capacity and right to bring a matter before a court (Onyeabor & Anika, 2016, pp. 63-72). In the face of these challenges, there have been successful cases such as Urgenda Foundation c. s. v The Kingdom of the Netherlands and Ministry of Infrastructure and the Environment [2015], where the district court ruled in favour of the plaintiff and moved that the Netherlands government were required to take more actions to reduce their share in CO2 emissions. Article 8 of the Paris agreement does not affect customary international law; therefore, the parties are not prevented from commencing climate litigation under the policy, merely article 8 ensures that the Paris Agreement itself does not provide the legal basis for such claims (Mace & Verheyan, 2016). Without a binding legal document that stipulates how and when countries can access funding in order to deal with loss and damage, current international law will hold, which as demonstrated is seeing more successful climate litigation cases arising. Therefore, despite the resistant consensus amongst developed countries towards liability and compensation, formal agreements will eventually be required to regulate climate litigation in this area though this is not likely to occur for some time reflecting on current policy trends.

Conclusion

Formal agreements will eventually be required to regulate climate litigation in regards to liability and compensation, and whilst this is not likely to occur for some time, steps should be taken towards strengthening the current provisions pertaining to loss and damage (Onyeabor & Anika, 2016). Loss and Damage occurs where adaption strategies are not sufficient, are erosive in nature, or due the certain constraints no strategies are implemented (Warner & Van der Geest, 2013). The Warsaw International Mechanism is key to mitigating the effects of loss and damage, particularly in vulnerable communities, and a number of current provisions under the agreement can be better utilised in order to achieve this.

In examining the Mechanisms scope of “enhancing action and support, including finance, technology and capacity-building” (UNFCCC, 2013, p. 2), more emphasis needs to be placed upon facilitation of adaptive strategies rather than provision of information.  Additionally, in considering of the Mechanisms scope to “provide technical guidance and support” (UNFCCC, 2013, p. 3); building social resilience, community education and preparedness, and creation of supportive environments, are all areas that will assist in preventing erosive adaptive strategies and ensuring affective adaptive strategies are implemented.  Other issues such as preservation of cultural and natural heritage should also be considered in the Mechanisms review at COP22 (Mannereau & Abraham, 2013).

In addition to these arrangements, more appropriate language in drafting of international agreements is needed in order to prevent intentional non-compliance, particularly in relation to funding arrangements.  In regards to funding arrangements, the alternative funding strategies outlined within article 8 of the Paris Agreement would be affective in addressing loss and damage. Incorporating this provision into the Warsaw International Mechanism itself, and changing the language used with this provision, would cause these funding arrangements to be binding (Mace & Verheyan, 2016).

As climate change continues to be a serious international problem, loss and damage will become an increasing issue. Several low lying Island States are at risk of being completely overcome by sea levels and continual draught in numerous countries is causing an unprecedented level of famine (Warner & Van der Geest, 2015). Without action, the loss and damage experienced by these communities’ will continue, perhaps even to a point of no return.

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