1. How can the wider issue of loss and damage (including potentially rehabilitation/compensation for damages) be distinguished from the WIM?
2. How can this be reflected in each of the following possible procedural scenarios:
- The COP retains its authority over the WIM
- The COP relinquishes its authority over the WIM and confirms that the issue of L&D will be addressed solely under the PA
- The COP relinquishes authority over the WIM but retains some mandate to give guidance in a general sense
1. How can the issue of loss and damage (including potentially rehabilitation/compensation for damages) be distinguished from the WIM?
As a matter of legal principle, it is difficult to see how the issue of loss and damage under the UNFCCC could be said to be restricted to the WIM. There is no established legal definition of loss and damage under international law; and the term is not used (and therefore not defined) in the UNFCCC. It is a creature of COP Decisions – but its boundaries are not fixed in those decisions. For example, 2/CP.19 para.7(a) speaks of the WIM “facilitat[ing] support of actions to address loss and damage”. It thereby appears to contemplate that other actions concerning loss and damage may occur beyond or in addition to its own activities.
More fundamentally, the existence of the WIM does not impinge upon the availability of causes of action outside the UNFCCC regime. Although the position has not yet been tested before an international court or tribunal, the consensus view is that the UNFCCC regime is not lex specialis – whether in respect of primary or secondary rules. First, the provisions of the relevant treaties are formulated in terms that are insufficiently specific to constitute a closed system. Second, it is far from clear that the terms contained in the climate change treaties would create actual inconsistency with general international law – for example, the no-harm principle.
Of course neither statement of principle offers a practical solution for distinguishing the issue of loss and damage from the WIM. But the fact that coherent principles exist may be drawn on to inform and support discussions under the procedural approaches set out below.
2. How can this be reflected in the procedural approaches above?
Although from a legal perspective, it is currently the case that the WIM functions under both the COP and the CMA, from a practical perspective, genuine issues of coordination are gathering on the horizon: as to procedure and the ExCom, for example. These issues will arguably make it more difficult for the WIM to function under both instruments without a common view of the purposes which it should serve. As I understand it, this underlying assumption is implicit in the request for advice.
Procedural approaches are likely to be slow-moving, and are subject to many different moving parts.
(i) The COP retains its authority over the WIM.
In the event that the COP retains authority over the WIM, one approach to begin distinguishing loss and damage from the WIM would be to bring out other avenues for addressing loss and damage already contained in COP Decisions – for example, by preparing appropriate wording in Preambles to Decisions (and ultimately the main body of Decisions). One simple example would be to reference the different “framings” of the definition of loss and damage, so as to give room to the argument that the WIM does not – and cannot – account for the entire range of activity relating to irreversible damage under the UNFCCC. This indirect and admittedly medium-to-long term approach may be more effective than more transparent attempts to include loss and damage in the (possible elements of the) COP draft provisional agenda.
A second approach would be to continue to press for recognition of scientific developments to be reflected in COP Decisions (despite recent minority but concerted opposition to the IPCC’s findings), with emphasis on unavoidable damage. This would at the very least have the effect of placing pressure on the WIM mechanism in terms of its achieved outcomes. In the long-term, consensus reflected in COP decisions would be grist to the mill to a request to the ICJ for an Advisory Opinion (and, presumably, the Opinion itself) – if and when that time eventually comes.
(ii) The COP relinquishes its authority over the WIM and confirms that the issue of loss and damage will be addressed solely under the Paris Agreement.
There is nothing in law to stop the COP relinquishing authority over the WIM – for example, through a new COP Decision. But I am not persuaded that the second part of the high-level scenario – “and confirms that the issue of loss and damage will be addressed solely under the Paris Agreement” – necessarily follows from the first part.
As a matter of law, “confirming” that the issue of loss and damage (as opposed to the WIM) will be addressed solely by the CMA would be problematic. The UNFCCC is an instrument separate from the Paris Agreement. Its ultimate objective is to stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system (art. 2). That ultimate objective is supported by Principles, which include taking precautionary measures to anticipate, prevent or minimize the causes of climate change – including where there are threats of serious or irreversible damage (art. 3(3)). The ultimate objective is further supported by Commitments (art. 4). It is difficult to see how that objective would not survive the COP’s relinquishment of authority over the WIM – short of an amendment to the Convention. The treaty’s ultimate objective cannot be delegated to another body operating under a separate instrument by way of a Decision only. This conclusion ultimately flows from the basic treaty principle of pacta sunt servanda (reflected in Article 26 VCLT): every treaty in force is binding upon the parties to it and must be performed by them in good faith.
Procedurally, it is worth recalling that consensus voting under the current Draft Rules is vulnerable to any form of concerted opposition (albeit it is not always clear precisely what level or form of opposition is required to prevent the adoption of a Decision). An attempt to “confirm” by way of Decision that the issue of loss and damage is outside the purview of the UNFCCC may be defeated by organized State opposition at a Conference.
If the COP were to relinquish authority over the WIM only, in my view the procedural options set out in (i) may also be applicable.
(iii) The COP relinquishes authority over the WIM but retains some mandate to give guidance in a general sense.
The legal and procedural considerations set out at (i) and (ii) continue to apply, mutatis mutandis. The fact that the COP relinquishes authority over the WIM does not mean that it divests itself of its international obligations arising out of the UNFCCC. Put simply, it would retain a mandate to consider issues relating to loss and damage under the UNFCCC.