On the surface, the Lima decisions on loss and damage may seem uncontroversial. The COP adopted the interim executive committee’s 2 year workplan and took steps to ensure the transition to a properly constituted executive committee. The COP reached agreement on the composition of the executive committee and some basic elements of its operation, such as consensus based decision making, minimum number of meetings per year, annual reporting to the COP, and transparency of its work through public access to meetings and decisions. This work is recognized in the preamble of the Lima Call For Climate Action, which makes specific reference to the Warsaw Mechanism and acknowledges the progress that has been made toward its implementation.

A closer looks, however, suggests there is good reason to worry about the future of loss and damage in the 2015 climate agreement. Article 2 of the Lima Call For Climate Action decides that the 2015 agreement shall address mitigation, adaptation, finance, technology development and transfer, and capacity-building, and transparency of action and support in “a balanced manner”. It makes no reference to loss and damage. The decision does leave open the possibility of including other items, but it is striking that loss and damage is not included in the list of issues to be addressed in a “balanced manner”.

The draft negotiating text attached as an Annex to the Lima Call for Climate Action is not the final negotiating text for the Paris agreement. The Lima Call for Climate Action explicitly left open the possibility of Parties adding to or amending the current negotiating text leading up to Paris. The current text offers little detail on the future of loss and damage, but it does includes a range of basic options on loss and damage, ranging from no reference to the issue in the Paris agreement to full recognition and possible enhancement of the Warsaw Mechanism to address loss and damage including through compensation. In short, the state of the Warsaw Mechanism in the current negotiations toward the post 2020 climate regime is very much uncertain in light of the COP decisions in Lima. One possible scenario clearly favoured by many developed countries is a mechanism that has no powers beyond investigating the issues identified in its current two-year workplan. At the other end of the spectrum would be the formal inclusion in the Paris agreement of a stand-alone mechanism on loss and damage that includes provision for compensation for loss and damage. It seems clear that many developed countries see the loss and damage mechanism as a threat rather than as an important part of the solution, and are, unfortunately, aggressively fighting against the inclusion of it as a separate pillar in the Paris agreement.

To download my publications on the topic of loss and damage, see http://ssrn.com/author=715387.  

 

Meinhard Doelle,

Director, Marine & Environmental Law Institute