Loss and Damage under the Warsaw International Mechanism

11/25/20223 min read

In 2015, loss and damage was recognized in Article 8 of the Paris Agreement as a component of the negotiations under the United Nations Framework for Climate Change ("UNFCCC"). Article 8 also provides for the establishment of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (“WIM”).

Since then, there has been a lack of clarity as to the precise meaning and scope of loss and damage.

From a temporal perspective, there are grounds to argue that loss and damage for the purposes of the WIM and UNFCCC (hereafter “L&D”) encompasses impacts suffered or to be suffered in the past, present, and future.

On its face, Article 8(1) is concerned with “loss and damage associated with the adverse effects of climate change, including extreme weather events and slow onset events, and the role of sustainable development in reducing the risk of loss and damage” (emphasis added).

In my view, the reference to the reduction of risk for events which have not occurred signals that Article 8 – and, by extension, the WIM – has application not only to remedies for loss and damage already suffered by reason of climate impacts induced by historical anthropogenic emissions, but also to the prevention of future loss and damage that may be avoided by implementing the principles of sustainable development.

Article 8(4) of the Paris Agreement provides for potential “cooperation and facilitation” in “(a) Early warning systems; (b) Emergency preparedness; (c) Slow onset events; (d) Events that may involve irreversible and permanent loss and damage; (e) Comprehensive risk assessment and management; (f) Risk insurance facilities, climate risk pooling and other insurance solutions; (g) Non-economic losses; and (h) Resilience of communities, livelihoods and ecosystems.”

It appears that Article 8(4) is concerned with adaptation to or reduction of the effects of climate change, which also connotes a forward-looking perspective.

According to van der Geest and Warner (2015), while there has been yet no consensus on the meaning and scope of L&D, it has been understood in two ways - first, the effects of climate change which have had adverse impacts; second, future effects of climate change that “have not been mitigated and are beyond adaptation”. The authors therefore propose that L&D be defined as the “adverse effects of climate-related stressors that have not been or cannot be avoided through mitigation and adaptation efforts”.

The heads of loss covered by L&D include loss and damage which are economic and non-economic in nature.

Examples of non-economic loss include biodiversity loss, damage to habitats and ecosystems or sites of cultural significance, loss of traditional or cultural knowledge or identity, territorial loss due to changes in sea levels, and adverse effects on human health (Serdeczny 2018).

One way of interpreting the scope of L&D is to take ‘damage’ to be climate impacts that are capable of repair or restoration, such as property damage, and ‘loss’ as those that are not capable of repair, such as loss of culture (Taub et al 2016).

While there is value in retaining some measure of “constructive ambiguity” in the definition of L&D, which avoids impasses and allows parties to explore and adjust their negotiating positions, the uncertainty around meaning could also impede discussions and prevent the development of productive solutions (Calliari et al 2020).

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