Transcript Loss and Damage - European Capacity Building Initiative

Loss and Damage
Legal and Scientific aspects
Raj Bavishi (Legal Response Initiative)
Professor Myles Allen (University of Oxford)
9 July 2012
european capacity building initiative
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european capacity building initiative
initiative européenne de renforcement des capacités
ecbi
for sustained capacity building in support of international climate change negotiations
pour un renforcement durable des capacités en appui aux négociations internationales
sur les changements climatiques
Introduction
 Current status in the negotiations
 Addressing loss and damage
 Legal approaches
 Issues of causation
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 What is loss and damage?
What is loss and damage?
 Terminology important – sets conceptual parameters
 Categories of damage
 Avoidable loss and damage avoided
 Sufficient mitigation and adaptation
 Avoidable loss and damage not avoided
 Insufficient mitigation and adaption
 Unavoidable loss and damage
 Regardless of future mitigation or adaptation measures
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 Adaptation or beyond adaptation?
The UNFCCC negotiations
 Loss and damage not explicitly mentioned
 Focus on mitigation
 But chapeau to Article 4.8 – insurance
 Calls for compensation for climate change damage are
not new
 Bangladesh (2005)
 AOSIS (2007)
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 UNFCCC and Kyoto Protocol
The Bali Action Plan (2007)
 Para 1(c)(ii)
Consideration of risk management and risk reduction
strategies, including risk sharing and transfer mechanism
such as insurance
 Para 1(c)(iii)
Disaster reduction strategies and means to address loss and
damage associated with climate change impacts in
developing countries that are particularly vulnerable to the
adverse effects of climate change
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 Decision 1/CP.13
Cancun – AWG-LCA (2010)
Strengthen…expertise in order to understand and reduce loss
and damage associated with to the adverse effects of
climate change, including impacts related to extreme
weather events and slow onset events (para 25)
Establish a work programme in order to consider, including
through workshops and expert meetings, as appropriate,
approaches to address loss and damage associated with
climate change impacts in developing countries that are
particularly vulnerable to the adverse effects of climate
change (para 26)
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 Decision 1/CP.16
Durban (2011)
 Work programme split into three thematic areas
 Assessing the risk of loss and damage
 Approaches to address loss and damage
 Expert meetings
 Technical paper on slow onset events
 Role of the Convention in enhancing implementation
 Recommendation to be made to COP18
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 Decision 7/CP.17 (Work programme on loss and
damage)
Work in 2012
 Approaches to address loss and damage to be discussed
in 4 expert meetings
 First meeting:13-15 June – Addis Ababa, Ethiopia
 Risk reduction
 Risk retention
 Risk transfer
 Institutions and governance arrangements
 Next meeting: 23-25 July – Mexico City, Mexico
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 First half of year - focus on risk assessment
Addressing loss and damage
 International mechanism dealing with the various
elements of addressing loss and damage is important
 Current regulatory framework (international and
domestic)
 Restricted
 Weak
 Significant issues
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 Progress in negotiations is slow
Legal approaches
 Litigation – tort based liability
 Lack of consistency
 International law – State Responsibility / ICJ opinion
 Issues of lex specialis
 Human rights – family life / right to property
 Extraterritoriality
 Compensation Fund – civil liability
 Nuclear liability / liability for oil spills
 Issue of causation
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 Negotiation – Build on Article 4.8 Convention
Issues of causation
 Updated for the 21st century: “Climate is what you
affect, weather is what gets you”
 Weather is directly observable, but unpredictable.
 Climate is predictable, but not directly observable.
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 Lorenz (1982): “Climate is what you expect, weather is
what you get”
The 2011 Thai Floods
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"Global climate change has
definitely contributed to the
recent unprecedented
flooding taking place in Thai
south,” Thailand's deputy
chief negotiator to the
UNFCCC
The 2011 Thai Floods
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The 2011 Thai Floods
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Rainfall not obviously related to global climate change (van
Oldenborgh et al, 2012).
Unprecedented damage due to unprecedented vulnerability?
The 2010 Russian Heatwave
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The 2010 Russian Heatwave
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Not
“impossible
without
warming”
Odds have
increased since
1960s, but the
change is still a
small
contribution to
the size of the
event.
Outstanding issues of causation
 Should we attribute 75% of the harm caused by that
heatwave to human influence on climate?
 No – some of this harm would have been caused by a
non-record-breaking heatwave.
 So we need to extend hydrometeorological modelling
to explicit impact modelling to compare probability
distributions of actual damage: no-one has done this yet.
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 Suppose human influence on climate increased the risk
of a record-breaking heatwave by a factor of 4.
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