Who is responsible for climate change loss and damage post-Paris?


Unless you are a climate change denier (and I sincerely hope that’s not the case), you probably agree that the warming of the Earth is one of the biggest global challenges we face today. The scientific debate is essentially settled. What is less clear is what we’re actually going to do about it. While global warming affects all countries, some will suffer the consequences more than others. Indeed, many of the countries that will be the most affected by climate change (and that have the least capacity to respond) have barely contributed to global greenhouse gas emissions.

In December last year, representatives from more than 190 States convened in Paris for the 21st session of the Conference of the Parties to the United Nations Framework Convention on Climate Change (COP21). Many have high hopes for the new international instrument finalised there: the Paris Agreement. Having surpassed the requirement of at least 55 States Parties, accounting for at least 55% of global emissions, the Agreement will enter into force this Friday (November 4).

The sea level rise predicted by the Intergovernmental Panel on Climate Change (IPCC) means that low-lying areas of the globe will increasingly undergo coastal flooding and erosion, and even submergence. Thus, unsurprisingly, small island developing States were among the first to ratify the Paris Agreement. More recently, the countries that account for the highest shares of global emissions — the US, India and China — have joined them.

The basic aim of the Paris Agreement is to limit the increase in the global average temperature to well below 2°C above pre-industrial levels. To achieve this, each State has to decide on its own ‘intended nationally determined contribution’ (INDC). For example, Australia’s INDC is to decrease greenhouse gas emissions by 26-28% below 2005 levels by 2030. Unfortunately, the combined INDCs do not appear to correspond with the 2°C goal. Some studies have indicated that even if all States Parties meet their targets, the result would still be approximately 2.7°C of warming by the year 2100.

It therefore seems that adverse climate consequences are to some extent inevitable. During the Paris negotiations, least developed States and small island nations pushed for the inclusion of a provision that would affirm their right to compensation for climate change ‘loss and damage’. Loss and damage can be considered to mean the harmful consequences of climate change that remain in spite of mitigation and adaptation efforts. Developing countries were in essence advocating that the industrialised nations responsible for historical emissions be held to account. Predictably, this position did not score points with the latter.

In the end, a compromise of sorts was reached. An article was included in the final text to recognise the importance of addressing and reducing the risk of loss and damage. However, the Conference of the Parties agreed in its decision adopting the Agreement that this article could not be used as a basis for any liability or compensation. Upon ratifying the Paris Agreement, the governments of several island States, including Tuvalu and Nauru, made declarations emphasising their understanding that the neither the Agreement nor its decision text precluded them from pursuing the issues of liability and compensation in the future. However, it is worth noting that such declarations are designed to clarify certain treaty provisions rather than alter their legal effects. Although the notion of liability and compensation is important to many States, opposition from developed countries means that it is unlikely to come into fruition.

Vulnerable nations will not be entirely hung out to dry, however. The Paris Agreement incorporates the continued use of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts. Established in 2013, this Mechanism is designed to enhance knowledge of risk management approaches, strengthen dialogue among stakeholders, and boost action and support to address loss and damage. The Mechanism could give the States that are the most susceptible to climate change threats access to vital financial and technical support. It will be reviewed at COP22, which kicks off next Monday (November 7) in Marrakech, Morocco.


Lauren Carmody is a student of both International Law at UWA and Language Studies (French) at ECU. She considers her greatest achievement to be that time she managed to get her winged eyeliner perfectly even.



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