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cbiLoss and Damage

Legal and Scientific aspects

Raj Bavishi (Legal Response Initiative)Professor Myles Allen (University of Oxford)

9 July 2012

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for sustained capacity building in support of international climate change negotiations

pour un renforcement durable des capacités en appui aux négociations internationales sur les changements climatiques

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Introduction

What is loss and damage?

Current status in the negotiations

Addressing loss and damage

Legal approaches

Issues of causation

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What is loss and damage?

Adaptation or beyond adaptation?

Terminology important – sets conceptual parameters

Categories of damage Avoidable loss and damage avoided

Sufficient mitigation and adaptation

Avoidable loss and damage not avoided

Insufficient mitigation and adaption

Unavoidable loss and damage

Regardless of future mitigation or adaptation measures

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The UNFCCC negotiations

UNFCCC and Kyoto Protocol Loss and damage not explicitly mentioned

Focus on mitigation

But chapeau to Article 4.8 – insurance

Calls for compensation for climate change damage are not new Bangladesh (2005)

AOSIS (2007)

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The Bali Action Plan (2007)

Decision 1/CP.13

Para 1(c)(ii)

Consideration of risk management and risk reduction strategies, including risk sharing and transfer mechanism such as insurance

Para 1(c)(iii)

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

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Cancun – AWG-LCA (2010)

Decision 1/CP.16

Strengthen…expertise in order to understand and reduce loss and damage associated with to the adverse effects of climate change, including impacts related to extreme weather events and slow onset events (para 25)

Establish a work programme in order to consider, including through workshops and expert meetings, as appropriate, 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 (para 26)

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Durban (2011)

Decision 7/CP.17 (Work programme on loss and damage)

Work programme split into three thematic areas Assessing the risk of loss and damage

Approaches to address loss and damage

Expert meetings

Technical paper on slow onset events

Role of the Convention in enhancing implementation

Recommendation to be made to COP18

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Work in 2012

First half of year - focus on risk assessment

Approaches to address loss and damage to be discussed in 4 expert meetings

First meeting:13-15 June – Addis Ababa, Ethiopia Risk reduction

Risk retention

Risk transfer

Institutions and governance arrangements

Next meeting: 23-25 July – Mexico City, Mexico

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Addressing loss and damage

Progress in negotiations is slow

International mechanism dealing with the various elements of addressing loss and damage is important

Current regulatory framework (international and domestic) Restricted

Weak

Significant issues

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Legal approaches

Negotiation – Build on Article 4.8 Convention

Litigation – tort based liability Lack of consistency

International law – State Responsibility / ICJ opinion Issues of lex specialis

Human rights – family life / right to property Extraterritoriality

Compensation Fund – civil liability Nuclear liability / liability for oil spills

Issue of causation

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Issues of causation

Lorenz (1982): “Climate is what you expect, weather is what you get”

Updated for the 21st century: “Climate is what you affect, weather is what gets you”

Weather is directly observable, but unpredictable.

Climate is predictable, but not directly observable.

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The 2011 Thai Floods

"Global climate change has definitely contributed to the recent unprecedented flooding taking place in Thai south,” Thailand's deputy chief negotiator to the UNFCCC

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The 2011 Thai Floods

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The 2011 Thai Floods

Rainfall not obviously related to global climate change (van Oldenborgh et al, 2012).Unprecedented damage due to unprecedented vulnerability?

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The 2010 Russian Heatwave

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The 2010 Russian Heatwave

Not “impossible without warming”

Odds have increased since 1960s, but the change is still a small contribution to the size of the event.

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Outstanding issues of causation Suppose human influence on climate

increased the risk of a record-breaking heatwave by a factor of 4.

Should we attribute 75% of the harm caused by that heatwave to human influence on climate?

No – some of this harm would have been caused by a non-record-breaking heatwave.

So we need to extend hydrometeorological modelling to explicit impact modelling to compare probability distributions of actual damage: no-one has done this yet.

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