Does the concept of Loss and Damage fall within the scope and mandate of the UNFCCC, in particular the objective to prevent dangerous anthropogenic climate change (Art.2)?
Although the UNFCCC objective (as described in Article 2) does not specifically cover loss and damage resulting from climate change, the parties are allowed to address the issue on the basis of other Convention principles and subsequent COP decisions.
In my view, the parties to the UNFCCC are allowed to address loss and damage related to climate change because of the political decisions taken in the Cancun Agreements (para.26-29) and the Durban Platform to address it, the science indicating that extreme events will become the norm, exposing vulnerable States to the worst impacts of climate change which they are not and will not in the future be able to address on their own, and equity considerations as set out in the principles of the UNFCCC (Article 3.1).
To a limited degree, the UN Framework Convention on Climate Change (UNFCCC) anticipates loss and damage as a result of climate change impacts. The Preamble (recital 8) refers to the principle of prevention (or “no harm”): “… States have, …, the sovereign right to exploit their own resources pursuant to their own environmental and development policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”. Article 3.3 states that “… [w]here there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, …”.
However, I think prevention of loss and damage cannot be considered part of the objective of the Convention to stabilize GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic climate change within the context of Article 2. The UNFCCC goal set out in Art. 2 is an objective, not a commitment as set out in the heading of that article. If aligned with Art. 4.2(a) and 4.2(b), the Annex I Parties were supposed to aim (non-binding commitment) to reduce their GHG emissions to 1990 levels by 2000. Soon thereafter, in the Berlin Mandate (1995) the Parties recognized that the aim was not going to be reached, so they agreed to mandate binding emission cuts for Annex I countries in the Kyoto Protocol (adopted in 1997) – an average of 5% reduction of GHGs in the first commitment period, from 2008-2012 which runs out this year. Hence, the original aim of the UNFCCC was not reached, but was replaced by a new commitment in the Kyoto Protocol. However, the objective of the UNFCCC was still intact, since the Kyoto Protocol referred back to it.
If one accepts that preventing dangerous anthropogenic climate change is now defined as keeping the temperature increase below 2°C and if one extrapolates what the IPCC says the reduction needs to be increased to uphold that limit in temperature, then the Parties must reduce their emissions by 25-40% by 2020, which is a far cry from what the Parties have set out in their pledges under the Copenhagen Accord and confirmed in the Cancun Agreements. Contrary to what some scholars may believe, I do not think that if Parties continue to put forward emission reduction targets which are obviously not aligned to the limit within the climate negotiations, this would constitute a breach of an international obligation. States can namely agree to whatever they please (for political reasons) even if it will not enable them to reach the treaty objective.
When a State breaches international law (by causing extra-territorial damage) it is responsible for that breach and has to pay reparations (e.g. compensation). In the case of the UNFCCC there are no binding reduction commitments and the Kyoto Protocol has its own rules on non-compliance which do not include loss and damage. In international law as in national law, damages are normally linked to the commitments. I therefore have my doubts whether we can tie the loss and damage resulting from climate change to the objective of the UNFCCC.
But considering the science, confirming what was uncertain earlier, we know that extreme weather events will become the norm – we are already seeing the impacts in many places around the world. Hence, loss and damage is then the natural next step to help vulnerable States address the inevitable, closely related to adaptation. This is also a question of equity. It is only fair that the most vulnerable States have their loss and damage addressed through new compensation or insurance mechanisms when they are not at fault for causing the GHG emissions that have lead to the change in climate.
In the context of the climate change regime, loss and damage has been introduced through the adaptation measures which are barely addressed in the UNFCCC, though somewhat more in the Kyoto Protocol, both of which mainly focus on mitigation (emission reductions). Adaptation has more recently been given equal priority with mitigation due to the recognition that impacts of climate change are already taking place and to a large extent are unavoidable, even though this does not diminish the importance of mitigation. Loss and damage was included in the text of the Cancun Agreements and the Durban Platform (under the heading ‘Enhanced Action on Adaptation’). Loss and damage will most likely be included in the new treaty to be adopted in 2015, which is to enter into force in 2020.