Can you provide a high level overview of the links between the Sendai Framework on Disaster Management, the Paris Agreement and the Warsaw International Mechanism? How can harmonisation/coherence between the Sendai Framework and the Paris Agreement be strengthened?
There is a growing body of scholarship that seeks to bring climate loss and damage and disaster law considerations under one umbrella of ‘disaster law’. The overarching benefit of this approach include possibilities for swift and effective response to ‘natural’ disasters without any of the political or conceptual difficulties involved with bringing these issues within a climate framing. However, retaining a distinct notion of ‘climate disaster law’ may be important for ethical reasons and financing. The following short analysis on how to enhance cooperation or coherence between both areas offers a purely textual analysis without comprehensive knowledge of the underlying policy discussions.
Loss and damage in the climate regime
The inclusion of a stand-alone article setting out the need to address loss and damage in the Paris Agreement (PA) represents a significant victory for affected country groups. This victory may have come at the cost of a narrow unsupported framing of loss and damage and future difficulties progressing the supporting structures through the climate regime.
Significant (for current purposes) sections from the relevant provision (Article 8, PA) read as follows:
“1. Parties recognize the importance of averting, minimizing and addressing 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.”
“4. Accordingly, areas of cooperation and facilitation to enhance understanding, action and support may include:
(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.”
Importantly, the conception of loss and damage is framed widely to include ‘events’ which could include catastrophic events, but also includes slow onset events, and early warning and risk systems.
What is, however, not included in the section is any obligation to address loss and damage either by means of support or other forms of finance. The ‘recognition of the importance’ wording does carry some normative force and the inclusion of the section has given loss and damage a place at the table. But it does not create any direct obligations for any parties to take steps in relation to any of the issues raised.
Article 8 expressly incorporates the existing Warsaw International Mechanism for Loss and Damage (WIM) into the Paris Agreement. The WIM was established in 2013 at COP 19 under the Cancun Adaptation Framework. The Cancun Adaptation Framework aims to enhance action on adaptation to reduce vulnerability and build resilience in developing country Parties, through for example international cooperation and coherent consideration of adaptation matters. The WIM’s function was defined as to promote ‘“implementation of approaches to address loss and damage associated with the adverse effects of climate change…in a comprehensive, integrated and coherent manner”.
Article 8 of the PA states: “3. Parties should enhance understanding, action and support, including through the Warsaw International Mechanism, as appropriate, on a cooperative and facilitative basis with respect to loss and damage associated with the adverse effects of climate change.“
Paragraph 5 of Article 8 refers to the WIM’s cooperation with other bodies: It “shall collaborate with existing bodies and expert groups under the Agreement, as well as relevant organizations and expert bodies outside the Agreement”.
At present, there is little real ‘muscle’ in the WIM. The Decision to the PA established a ‘clearing house’ for risk transfer and some additional functions but its potential remains underdeveloped.
Disasters and the Sendai Framework
The SF for Disaster Risk Management 2015-2030 was adopted by UN Member States on 18 March 2015 at the Third UN World Conference on Disaster Risk Reduction in Sendai City, Miyagi Prefecture, Japan. It is a 15-year, voluntary, non-binding agreement which aims for the following outcome:
‘The substantial reduction of disaster risk and losses in lives, livelihoods and health and in the economic, physical, social, cultural and environmental assets of persons, businesses, communities and countries’.
Its four priorities for action are
1) to understand disaster risk in all its dimensions of vulnerability, capacity, exposure of persons and assets, hazard characteristics and the environment;
2) to strengthen disaster risk governance at national, regional and global levels to manage disaster risk;
3) to affirm the importance of public and private investment in disaster risk reduction;
4) to enhance disaster preparedness for effective response and to “Build Back Better” in recovery, rehabilitation and reconstruction.
It should be noted that the SF establishes voluntary obligations and that, while this carries a great deal of interpretative and normative force, at this stage it does not create any binding obligations for any parties with respect to climate disasters.
The Paris Agreement and the Sendai Framework
The SF recognises climate change as ‘one of the drivers of disaster risk’ (SF, para 13). Section I paragraph 13 of the Framework states that ‘Addressing climate change as one of the drivers of disaster risk, while respecting the mandate of the United Nations Framework Convention on Climate Change, represents an opportunity to reduce disaster risk in a meaningful and coherent manner throughout the interrelated intergovernmental processes’.
The Framework also states that ‘The climate change issues mentioned in this Framework remain within the mandate of the United Nations Framework Convention on Climate Change under the competences of the Parties to the Convention’ (footnote, SF, para 13).
The SF complements Article 7 (adaptation) and 8 of the PA and the WIM’s approach to risk management. Both the PA and the SF, for instance, call for an increase in the availability of multi-hazard early warning systems, the availability of disaster risk information, and the provision of insurance solutions. Article 8 of the PA also states the importance of resilience (of communities, livelihoods and ecosystems) which resonates with the SF.
However, discussions prior to the PA of parties to the UNFCCC saw developed countries argue that the Hyogo Framework, the predecessor to the SF, is ‘well-suited to addressing the needs of vulnerable Parties’ and therefore dispute the need, argued by developing Parties, for new institutional mechanisms under the UNFCCC. This has been seen as a ‘deliberate strategy […] to neutralise politically-sensitive discussions of loss-and-damage under the UNFCCC which are fundamentally about State responsibility for transboundary harm – by enmeshing these discussions in a different international framework that severs the causal link between emissions and impacts and that places responsibility on countries to find ways to reduce their own vulnerabilities, using their own resources’.
Relatedly, unlike the PA and the WIM, the SF does not state an ambition to ‘address’ loss and damage but to better understand risk, strengthen risk governance, reduce risk through investment, and increase disaster preparedness.
Despite this, the PA and the SF can be considered potentially complementary and may together ‘make for a more complete resilience agenda’. How to further coherence between the two agendas was explored at a side-meeting at COP-23. The climate economist Reimund Schwarze has written that:
“Only by dovetailing Sendai and Paris will the outcomes of these international negotiations be mutually strengthened. For this to occur, the linkages between the Sendai and PA need to be identified, […]. One thing required for this is to harmonise the indicators for climate adaptation as well as those for sea-level rise in both agreements. The definition of “loss and damage” needs to be adjusted to fit with the targets contained in the Sendai agreement and with how these are measured and monitored. The “climate insurance” promised in the Paris treaty ought to be judged by whether or not it actually strengthens the resilience of those – largely poor – people affected and whether it improves their living conditions. Dovetailing Paris and Sendai will involve, first, aligning their stages of implementation with one another in terms of both timing and organisation. Under Sendai, implementation occurs via so-called national UNISDR platforms, a civil protection organization which, in many cases, is barely familiar – if at all – with the challenges posed by climate change. Conversely, the national environmental agencies that deal with climate change generally keep their distance from disaster management tasks such as early warning and emergency programmes. Yet both belong together.”
Both mechanisms also fit well within a growing body of work characterised as Climate Disaster Law which seeks to bring together work on disasters (broadly defined – so including slow impact onsets and understanding the significance of vulnerability in making a weather event a disaster) and climate. The thinking behind this is compelling – that climate change both increases and changes the nature of disaster risk, as well as undermining capacity to respond to and absorb those risks. The two frameworks enhance one another and both present compelling normative arguments for the improvement of mechanisms to address loss and damage caused by climate change and climate disasters.
Furthermore, while the SF is still largely a collection of principles, it does contain detailed conceptual thinking in terms of what is required for an adequate disaster response. Key to this is its focus action both at the local and national, as well as global and regional levels. This approach is implicit in the PA and supports the inclusion of the priorities and principles of the SF to be included in the formulation of NDC’s and the laws and policies underlying them.
On the one hand, the SF can be used to provide significant moral and normative support in the development of the WIM and attempts to address climate loss and damage. This approach has been taken elsewhere in relation to the Sustainable Development Goals. The interlinkages between the two are clear and approaching these within a frame of the stages of climate disaster response, can be very useful. In practice, this could be done via a regular exchange of information and expert advice, mutual participation in meetings, joint consultations or events, the establishment of a joint working group, work programme, “task force” etc. At present, however, there is little of substance to date either in the WIM or the relevant provisions of the PA to make specific procedural recommendations.
It appears that the possibility of linkages has been contemplated under both regimes and that the SF specifically recognises the potential for climate change to increase the risk of sudden and slow-onset disasters. The Sendai principles can be useful in fleshing out the concept of loss and damage, but also contains more detailed principles and guidance in terms of what is required (particularly in the later stages of disaster response) than the WIM. Using the two together could support a coherent development of climate disaster response in the following areas:
- Prevention – this stage requires both full and comprehensive assessment of risk, as well as taking steps to address vulnerability and resilience to risks and harms of climate events. This stage is well supported under both – as explained above the Decision to the PA created a ‘clearing house’ for risk and both Sendai and the WIM/Paris make clear the need for improved understanding and management of risk. Importantly, both the SF and the WIM require an improved understanding of the impacts of climate change, and in particular the WIM calls for vulnerability and adaptation assessments. This represents a core linkage between the two, and also reflects developed and supported actions areas under the WIM. Knowledge of climate risk and sufficiency of adaptation are necessary to support proper risk management under the SF.
- Response – Lyster and Verchick identify two core elements that are necessary to support a good response to potential disasters: early warning systems and emergency plans. The need and importance of early warning systems are recognised under the SF (see 33 b). These forecasting and response systems are required to be multi-hazard, multilevel and constantly being maintained and updated to reflect improved or changing understanding of risk. As with adaptation, this needs to be responsive and addressed at a local level. There is scope to develop this understanding within the WIM. Significantly this requires financial and technological investment, which do not have formal linkages to loss and damage under the PA. This is an area where emphasising linkages with the SF would be helpful due to the emphasis on public and private investment in risk reduction.
- Rebuilding and recovery – this third ‘stage’ of climate disaster response also shares significant common ground with the adaptation response. This requires significant assessment of the adequacy of local and national laws and regulation to assess the safety and sustainability of rebuilding or relocation initiatives. Again, this stage of response requires significant interfaces with adaptation and sustainable development, in requiring that any redevelopment addresses issues of vulnerability but also important questions about siting of new developments. SF principle 4 requires detailed advanced, climate sensitive plans that support rebuilding and recovery to a more resilient standard – ‘Build Back Better’. This an area where linking the SF to the PA /WIM can be supportive because whilst the latter two do specify the need to ‘address’ loss and damage, and the need to address vulnerability and improve resilience, this is not as clearly enunciated as the detailed advanced thinking envisaged in the SF.
- Compensation and risk transfer – the fourth stage of disaster response requires significant investment and financing to support the measures necessary to rebuild and prevent future problems. While insurance mechanisms certainly play a role, it is unlikely that this would be sufficient to meet the likely costs and risks anticipated from climate change. As above, the SF provides a much more fleshed out and detailed set of principles and action priorities around both insurance and risk transfer, as well as financing and investment in both preventative activities and response and rebuilding. Because there are no clearly stated linkages between loss and damage and climate finance, and because of the difficulties presented by this under the climate regime, use of disaster funds and support in relation both to sudden and slow-onset events may offer a pragmatic and workable solution to the need for urgent financing to address climate loss and damage. The potential problem, of course, of addressing climate loss and damage outside of the climate regime is that this could obscure the necessity for financing for climate loss and damage, as well as eclipsing out any arguments about historic responsibility. This is one key area where synergy between the two is important – relying on the more developed principles under the SF and disaster funding for much needed relief, while maintaining the emphasis on climate harms in order that the broader context within which loss and damage arises is not lost.
 MJ Mace and Michiel Schaeffer, ‘Loss and Damage under the UNFCCC: What relationship to the Hyogo Framework’, 4-5, http://loss-and-damage.net/download/7248.pdf
 Rosemary Lyster and Robert Verchick, ‘Introduction’, Climate Disaster Law: Barriers and Opportunities (Edward Elgar 2018)… available online in draft at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3051496
 Francesco Sindico, ‘Paris, Climate Change, and Sustainable Development’ (2016) 6 Climate Law 130.
 Lyster and Verchick (n 6).
 The UNFCCC secretariat regularly summarizes cooperative activities with United Nations
entities and intergovernmental organizations – see for example FCCC/SBSTA/2017/INF.2 of
4 May 2017.