Consequences of adding ‘loss and damage’ as a third pillar of international climate change law

‘So what is your biggest concern going into Paris?’ Rolling Stone Magazine asked then US Secretary of State John Kerry in the run-up to COP 21 in Paris. Kerry answered: ‘I think [resolving the division between the] developed-and-developing-country piece is important. I think loss and damage will be complicated.’ John Kerry was
indeed right, but ultimately ‘loss & damage’ became established within the UNFCCC Treaty framework through Article 8 of the Paris Agreement. This provision has been the subject of much analysis. However, its impact on the construction of UNFCCC
provisions on ‘mitigation’ and ‘adaptation’ seems to have slipped under the radar.

Whereas ‘mitigation’ is often viewed as the first pillar of international climate change law, ‘adaptation’ is viewed as its second pillar. The adoption of the Paris Agreement added ‘loss & damage’ as a third pillar.

FIGURE 1: The three pillars of international climate change law

This introduction of ‘loss & damage’ at treaty level not only affects the notion of ‘loss & damage’ itself; it also has consequences for the two pre-existing pillars of mitigation and adaptation.

Firstly, ‘loss & damage’ provides a legal basis for finding ‘responsibility’ and thereby engenders a legal strengthening of the duties which the parties to the Paris Agreement assume within the fields of ‘mitigation’ and ‘adaptation’. This affects the very content and interpretation of the provisions on mitigation and adaptation, and, in particular, is likely to strengthen the legal basis for pursuing remedies aimed at reparation, such as supporting climate change funds and insurance solutions.

Secondly, prior to the adoption of the Paris Agreement, ‘loss & damage’ was essentially viewed as part of adaptation. However, with the establishment of ‘loss & damage’ as a third pillar of international climate change law, ‘loss & damage’ issues shall no longer be treated as matters of adaptation. This essentially means a material reduction of the scope of adaptation.

FIGURE 2: Mitigation, adaptation and the WIM before the adoption of the Paris Agreement

FIGURE 3: Mitigation, adaptation and the WIM after the adoption of the Paris Agreement

Thirdly, in particular the USA worked hard to ensure that the Paris Agreement’s new provision on ‘loss & damage’ would not establish a legal basis for liability and compensation. This ‘limitation’ was not introduced in the Paris Agreement itself, but only in paragraph 51 of the decision adopting the Agreement. However, it is not obvious that a provision in this decision can limit the Agreement itself – and even if it can, the Parties may revoke the limitation by having the COP adopt a new decision. Whereas adopting a new decision revoking or otherwise amending paragraph 51 is not going to be straightforward, adopting such a new decision is appreciably easier than amending the Paris Agreement as such.

Read the full article

Morten Broberg is professor at the Centre for International Law and Governance at the University of Copenhagen.

2 thoughts on “Consequences of adding ‘loss and damage’ as a third pillar of international climate change law

  1. Dear Morten,

    The idea that the Paris Agreement has established “loss and damage” as a third pillar of international climate change law appears to be based more on wishful thinking than on reality. Yes, Article 8 of the Paris Agreement deals with loss and damage, but nothing in the text of the article or in Decision 1/CP.21 suggests a departure from what was agreed in Decision 2/CP.19. This decision established the Warsaw International Mechanism under the Cancun Adaptation Framework.

    Article 5 of the Paris Agreement addresses sinks and reservoirs. Does that set sinks and reservoirs apart from mitigation? Should sinks and reservoirs be a fourth pillar under international climate law? There is no logic in changing the definition of mitigation to accommodate such a pillar, just like there is no logic in changing the definition of adaptation.

    In my view, Article 8 of the Paris Agreement actually reduces the likelihood of reparation as an approach to address loss and damage under the UNFCCC. While Article 5 refers to “results-based payments” for forest-based activities, the “areas of cooperation and facilitation” listed in Article 8 steer clear of anything related to responsibility. Risk insurance facilities, climate risk pooling and other insurance solutions are mentioned, but consideration of insurance is nothing new to adaptation (see, for example, para 14(e) of Decision 1/CP.16, under the heading “Enhanced action on adaptation”).

    In a presentation during a COP25 side event organised by the German Development Institute, the ACT Alliance, Brot für die Welt and IDDRI, I said that ideological grandstanding on loss and damage at the expense of adaptation risks creating policy fragmentation and political polarisation. Perhaps in academia this is a fight worth fighting. But if the purpose is to mobilise more money to support vulnerable people and communities in the face of climate change and its impacts, then a more pragmatic approach should be considered.

    Call for more funds rather than for an additional label. For people in urgent and immediate need of support, the label under which funds are provided – adaptation, loss and damage, humanitarian action, disaster risk reduction – will be the least of their concern.

    Best,
    Richard Klein

    1. Dear Richard,

      Thank you for responding to my blog post. In your response, you raise two questions. Firstly, what is it that makes ’loss and damage’ a new third pillar of international climate change law. And, secondly, does the Paris Agreement’s Article 8 on loss and damage strengthen or weaken the possibility of mobilising more money to support vulnerable people and communities in the face of climate change and its impacts.

      As concerns the former, a ’pillar’ is not a legal term of art. It is merely a metaphor that within the field of law is typically used to illustrate the basic substantive structure of a given field. Perhaps the most well-known example is the (pre-Lisbon Treaty) pillar structure of the European Union where the first pillar accounted for the vast majority of EU collaboration whereas pillars two and three only played minor roles. As concerns the UNFCCC, I believe that a natural approach to addressing climate change is to first try to mitigate. To the extent that this fails, we shall try to adapt. And only where we are unable to adapt, we will consider ‘loss and damage’. Even though it may be difficult to clearly distinguish between the three areas (in particular between ’adaptation’ and ’loss and damage’), they cover three different aspects of international climate change law. And by succeeding in introducing loss and damage into the UNFCCC treaty framework, from a legal perspective, loss and damage has been placed at the same (treaty) level as mitigation and adaptation. This does not imply that loss and damage is just as elaborate and has the same legal instruments available as those that apply in the case of mitigation or adaptation. To my mind, in this situation, it makes good sense to refer to ‘mitigation’, ‘adaptation’ and ‘loss and damage’ as three ‘pillars’ – but, as noted above, there are no direct legal consequences flowing from my use of the term ’pillar’.

      As concerns your other observation, I understand that you take the view that in practice the introduction of Article 8 on loss and damage in the Paris Agreement reduces the likelihood of reparation as an approach to address loss and damage under the UNFCCC. I am afraid that in this regard I am unable to follow your line of argument. My above blog post necessarily is rather summary. However, in the article in Climate Policy which forms the basis for my blog post (you may find a link to the article above) I argue that the very introduction of loss and damage in Article 8 of the Paris Agreement strengthens the legal basis for pursuing remedies aimed at reparation for adverse consequences that can be attributed to the failure to fulfil UNFCCC obligations as laid down in the provisions on mitigation and adaptation. For example, remedies such as the establishment of climate change funds and insurance solutions.

      The main point of my article – and therefore also of my blog-post – is that introducing loss and damage into the UNFCCC treaty framework is not just about giving loss and damage a new label. It is also about Article 8 of the Paris Agreement improving the possibilities of obtaining reparation for people in urgent and immediate need of support.

      All good wishes,
      Morten

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