By Sara Seck and Meinhard Doelle
The focus of attention in climate negotiations has long been on mitigation and the need for decarbonization, with adaptation and finance receiving increased attention in recent years. Serious attention to loss and damage arising from climate change is long overdue: yet despite efforts by those states and communities that are least responsible and most vulnerable to climate change, loss and damage remains on the margins of climate negotiations rather than at the centre (see UN news story and Sci Dev Net). From a human rights perspective, this is inexcusable (see ESCR-Net), especially as other areas of international law addressing interconnected issues such as disaster and displacement struggle to fill the gap.
Developed countries have long resisted the call from vulnerable developing country members to address loss and damage in the climate regime, even though the issue was placed on the agenda by the Alliance of Small Island States (AOSIS) as early as 1991 (see Siegle). When the Warsaw International Mechanism for Loss and Damage (WIM) was established in 2013, it was under the Cancun Adaptation Framework, rather than understood as a distinct issue. This changed with Article 8 of the 2015 Paris Agreement, in which Parties “recognize the importance of averting, minimizing and addressing loss and damage associated with the adverse effects of climate change, including extreme weather events and slow onset events”. Yet the Decision adopting the Paris Agreement states that the Parties agree Article 8 “does not involve or provide a basis for any liability or compensation”. Instead, much of the work on loss and damage to date has focused on technical studies and information gathering.
COP 26 provided another opportunity for the UN Climate Regime to bring loss and damage more fully into the fold. While Part VI of the Glasgow Climate Pact is devoted to Loss and Damage, a key question of governance of the WIM remains unresolved (n9) – as a result, it is unclear whether the WIM will report just to the CMA, or whether it will report to both the CMA and the COP. The Glasgow Climate Pack does clearly acknowledge that “climate change has already caused and will increasingly cause loss and damage” and that this includes extreme weather as well as slow onset events which “will pose an ever-greater social, economic and environmental threat” (para 61). The “urgency of scaling up action and support” for particularly vulnerable developing countries is also reiterated ‘including finance, technology transfer and capacity-building” (para 63).
Unfortunately, the status of Loss and Damage under the transparency, review and compliance mechanisms of the Paris Agreement has not improved as a result of COP 26. The inclusion of efforts on loss and damage remains essentially voluntary. This means that the upcoming Global Stocktake is unlikely to include a rigorous analysis of actions and commitments with respect to loss and damage and how they stack up against the need. Until this changes, loss and damage will continue to be the poor cousin of mitigation and adaptation of the UN climate regime.
Financing for loss and damage has been described as a latecomer to the UN Climate regime (see Ferreira). An important background concern moving into COP 26 was the continued failure of developed countries to fulfill a pledge made in 2009 to provide $100 billion per year in finance for mitigation and adaptation – with most of the funds that have been provided going to mitigation (see Nature). Despite the advocacy of climate vulnerable developing states and the G77 for a new finance facility dedicated to the distinct yet related issue of loss and damage, developed nations resisted (see CARE International; DownToEarth). Nevertheless, financial pledges specifically to address loss and damage were forthcoming led notably by Scotland (partnering with the Climate Change and Resilience Fund – CCRF) whose move was described as breaking new ground (see Climate News). The need to resolve the issue of climate finance for loss and damage is recognized in the Glasgow Climate Pact with the establishment of the “Glasgow Dialogue between Parties, relevant organizations and stakeholders” specifically designed to “discuss the arrangements for the funding of activities to avert, minimize and address loss and damage associated with the adverse impacts of climate change” (para 73) in cooperation with the WIM (para 74). With an end date of June 2024, this 2 year initiative has been described as “grossly insufficient” (WRI) and, by G-77, as extremely disappointing (see DownToEarth).
Progress was made on the operationalization and funding of the Santiago Network established at COP25 in Madrid and designed to catalyze technical assistance on loss and damage (paras 66- 67, see also CMA 3.10-3.11). Overall, Parties acknowledged that “coherent action” was necessary to “respond to the scale of needs caused by the adverse impacts of climate change” (para 71) and resolved to strengthen partnerships between rich and poor states, communities, civil society, funds, and technical agencies so as to enhance approaches to loss and damage (para 72). It remains to be seen whether meaningful funding for climate loss and damage will ever appear through the mechanisms of the UN Climate regime.
Yet, as Ugandan climate crisis activist, Vanessa Nakate, stated in a recent interview with The Guardian:
“We need a separate fund for loss and damage. Because communities cannot adapt to the loss of their cultures or their traditions, they cannot adapt to the loss of lives, or to starvation. We have to start this conversation about the climate crisis; who is responsible and who has to pay?” It is important to conceive this money not as aid, but as reparations, she says. At a practical level, the money must come in the form of grants, not loans: “We don’t want to see the climate movement adding to the existing debt of the global south.”
The continued failure to effectively integrate climate loss and damage and treat it as on par with mitigation and adaptation is clearly problematic from a human rights and climate justice perspective. It is also problematic from a pragmatic perspective: the failure to clearly assign responsibility for the cost of loss and damage makes the economic calculations of those who continue to contribute to the problem inaccurate. Rather than integrating polluter pays, the cost of not acting appears significantly less than it actually is, whether the actor is a state or a business, leaving aside important conversations about climate crimes.
Not dealing equitably (see Chalifour) with climate loss and damage within the UN climate regime places the burden of dealing with liability for loss and damage on a broad range of legal systems, as we argue in the recently published co-edited Research Handbook on Climate Change and Loss & Damage. These legal systems were generally not designed to deal effectively with this growing global challenge, creating a patchwork of approaches with significant gaps, despite the increase in climate litigation around the world.
There are also debates about how loss and damage should be understood: adopting a carbon capitalism framework, Carmen Gonzalez argues that an appropriately expansive understanding of climate loss and damage would include poor and racialized communities that suffer the consequences of fossil fuel extraction. Kyle Powys Whyte draws attention to understandings of loss and damage from the perspective of Indigenous peoples, noting the importance of states acknowledging the underlying colonial and capitalist political structures that limit the ability of Indigenous peoples even in developed states to adapt to climate change. More generally, the deployment of a rights-based approach to climate loss and damage is essential (see Lofts, Jodoin, & Parker) for transformative solutions capable of overcoming underlying causes and vulnerabilities to climate crisis, and interrelated conversations about triple planetary crisis, including both nature loss and pollution.
Featured image: Ny Menghor