What are the legal implications for the Warsaw International Mechanism for Loss and Damage if it was moved under the Paris Agreement? What would be the potential advantages and disadvantages, e.g.in terms of governance, if it was guided by and accountable to the Meeting of Parties to the Paris Agreement (CMA) rather than the COP – or both?

Advice:

The Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (Loss and Damage Mechanism or WIM) was established under the UN Framework Convention on Climate Change at COP19 (in decision 2/CP.19). Its overall mandate is to address loss and damage associated with impacts of climate change, including extreme events and slow onset events, in developing countries that are particularly vulnerable to the adverse effects of climate change (2/CP.19 para.1).

To guide the implementation of the functions of the Loss and Damage Mechanism, the COP also established an executive committee of the WIM. The Executive Committee comprises twenty members from Parties to the UNFCCC. 10 members from Annex I Parties and 10 members from non-Annex I Parties: 2 members from each of the African States, the Asia-Pacific States, and the Latin American and Caribbean States, 1 member from SIDS, 1 member from the LDC Parties, and 2 additional members from non-Annex I Parties (decision 2/CP.20).

The Executive Committee functions under the guidance of, and is accountable to, the COP (decision 2/CP.19, para.2). It has to report annually (through the Subsidiary Body for Scientific and Technological Advice and the Subsidiary Body for Implementation) and can make recommendations (2/CP.19, para.3) to the COP.

The Paris Agreement integrates the WIM and its functions. It provides (in Art.8 para.2) that the WIM will also be subject to the authority and guidance of the supreme governing body of the Agreement – the COP serving as Meeting of the Parties to the Paris Agreement (CMA). For the purposes of the Paris Agreement the CMA may strengthen and enhance the existing Loss and Damage Mechanism. Hence, formally the WIM already operates under both international agreements (the UNFCCC and the Paris Agreement).

In the future, Parties may, however, decide to decouple it from the UNFCCC and make it subject to the guidance and authority of the CMA only. This would require additional decisions by the Parties similar to those taken to move the Adaptation Fund established under the Kyoto Protocol to the Paris Agreement.

Reopening the discussion

The associated decision making process may provide some Parties with an opportunity to reopen the discussions about the WIM itself, its mandate and functions. So there is a certain risk that the compromise reached after years of very contentious negotiations and the WIM’s ongoing work might be disrupted.

On the other hand, moving the WIM entirely under the Paris Agreement may also offer the opportunity to highlight and enhance its role under the Agreement and align the mechanism with other institutional developments as well as the latest science. If Parties do not begin to renegotiate substance, however, the practical effects of such a change on for example reporting, the work programme or operations are likely to be limited.

Future work

However, it is generally recognised that the mandate of institutions and bodies established under an international treaty is at least to some extent limited by the functions and objects of that (governing) treaty. While the scope of the UNFCCC as a framework agreement is probably slightly broader than the Paris Agreement it contains a rigid differentiation between Annex I (developed country Parties) and non-Annex I developing countries based on their historic responsibility for climate change.

The Paris Agreement in comparison (although it still uses the terms developed and developing country Parties) has moved away from the formal binary distinction between parties. Historic responsibility for GHG emissions has become less relevant (than e.g. respective capabilities) in determining Parties’ expected conduct. In addition, the Paris Agreement was adopted with the cryptic statement (in para.51 of the accompanying decision 1/CP21) that Article 8 on loss and damage “does not involve or provide a basis for any liability or compensation”.

As a result, some Parties might find it easier to argue that the issue of state responsibility for climate change damage has been excluded from the WIM’s mandate if the institution, initially established under the UNFCCC, was subsequently moved under the new regime of the Paris Agreement. The better legal assessment, however, is that Article 8 cannot be construed as an express admission of liability but does neither abrogate the general rules of international law on state responsibility nor limit the future work of the WIM.[1] If Parties will at some point – possibly jointly under the WIM – deal with liability and compensation remains a contentious, essentially political question.

Participation of Parties

If the WIM was completely decoupled from the UNFCCC and operated solely under the Paris regime, only Parties to the new Agreement would be able to fully participate in the mechanism. Some UNFCCC Parties that have not yet ratified the Paris Agreement (e.g. the Russian Federation) or that may withdraw from the Agreement in the future (i.e. the US) will be formally excluded from decision-making processes, cooperative activities or new joint approaches.

At present, for example, the WIM’s Executive Committee comprises members from Parties to the UNFCCC (including one member nominated by the US). If and when the Committee operates under the Paris Agreement only Parties to the Paris Agreement would be able to nominate a member.

While the formal exclusion of some Parties from participation may reduce the influence and clout of the Loss and Damage Mechanism, its work and outputs, it could also help the WIM to pursue more ambitious goals and expand its mission. Non-Parties to the Paris Agreement, however, may continue their efforts to influence – for example as observers to the Paris Agreement or in other international policy fora – its development.

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[1] To exclude these rules, states would, for example, have to create a specific regime that clearly addresses the consequences of climate change induced loss and damages.