Loss, Damage and Responsibility after COP21: All Options Open for the Paris Agreement

Abstract

The issue of ‘loss and damage’ has proven to be a legally and politically challenging one within the international climate change regime. This article presents a brief history of the issue, and reviews related Paris outcomes, focusing on the issues of compensation and liability, governance, financial support, insurance and displacement. It concludes that despite paragraph 51 of Decision 1/CP.21 adopting the Paris Agreement, all options remain open for the development of a system under the climate regime that can address the underlying concerns raised by small island developing States and others in calling for a system of compensation and liability. In the context of the 1.5 °C temperature limit and increasing climate impacts, this article also highlights the need for the Warsaw International Mechanism to play an active role in quantifying the scale of loss and damage that is projected from human-induced climate change in different regions and in different national contexts, over different time frames and at different emission pathways, and in sharing developments in attribution science, to help in the design of approaches to address loss and damage that are suited to assisting the most vulnerable developing country parties and to underscore the need for urgent emission reductions.

Full text

Loss, Damage and Responsibility after COP21: All
Options Open for the Paris Agreement
M.J. Mace* and Roda Verheyen
The issue of ‘loss and damage’has proven to be a
legally and politically challenging one within the inter-
national climate change regime. This article presents a
brief history of the issue, and reviews related Paris
outcomes, focusing on the issues of compensation and
liability, governance, financial support, insurance and
displacement. It concludes that despite paragraph 51
of Decision 1/CP.21 adopting the Paris Agreement, all
options remain open for the development of a system
under the climate regime that can address the
underlying concerns raised by small island developing
States and others in calling for a system of compensa-
tion and liability. In the context of the 1.5 °C tempera-
ture limit and increasing climate impacts, this article
also highlights the need for the Warsaw International
Mechanism to play an active role in quantifying the
scale of loss and damage that is projected from
human-induced climate change in different regions
and in different national contexts, over different time
frames and at different emission pathways, and in
sharing developments in attribution science, to help in
the design of approaches to address loss and damage
that are suited to assisting the most vulnerable devel-
oping country parties and to underscore the need for
urgent emission reductions.
INTRODUCTION
The issue of ‘loss and damage’–how best to address
the permanent and irreversible impacts of human-
induced climate change on particularly vulnerable
developing countries –has proven to be a legally and
politically challenging one over the years. Recognition
of this issue in the Paris Agreement
1
was a key out-
come for vulnerable developing countries. Neverthe-
less, not all of the Parties' underlying concerns are
resolved with the inclusion of Article 8 in this legally
binding treaty. Open issues include the implications of
paragraph 51 of Decision 1/CP.21
2
for the evolution of
the climate change regime and for the work of the
Warsaw International Mechanism (WIM); the
relationship between loss and damage and adaptation;
the source of financial and technical resources to
address loss and damage; and the role of the WIM
after the adoption of the Paris Agreement.
This article starts with a brief history of loss and dam-
age under the United Nations Framework Convention
on Climate Change (UNFCCC). It then sets out the
central elements of the WIM’s functions, tasks and its
‘action areas’. Next, the article reviews Paris negotiat-
ing positions and outcomes on loss and damage,
focusing on: contentious paragraph 51 addressing
compensation and liability; the relationship of the
UNFCCC Conference of the Parties (COP) and the
COP serving as Meeting of the Parties to the Paris
Agreement (CMA) in connection with the WIM after
Paris; financial support to address loss and damage;
tasks given to the WIM in connection with insurance
and displacement; and the possible role of the WIM
going forward. The article moves on to consider the
significance of the Paris Agreement’s adoption of an
enhanced 1.5 °C long-term temperature limit in the
context of minimizing loss and damage, and discusses
historical responsibility for emissions and temperature
rise, developments in attribution science, and the
implications of the Paris outcomes for progress on loss
and damage going forward, now that the WIM is
firmly placed within the climate regime to ‘address’
loss and damage on behalf of all parties to the Con-
vention and the Paris Agreement.
We conclude that despite the adoption of paragraph
51, all options remain open for the development of a
system under the climate regime that can address the
underlying concerns raised by small island developing
States (SIDS) and others in calling for a system of
compensation and liability. In the near term, rather
than emasculating the WIM, paragraph 51 may actu-
ally serve to liberate the WIM, allowing it to draw
together information that can help policy makers in
particularly vulnerable developing countries better
understand the timing and scale of projected impacts
and the loss and damage expected to result in differ-
ent regions and national contexts, filling an important
information gap in the regime. Over time, the door
remains open to the development of a regulatory sys-
tem within the regime that can provide the technical
and financial support needed to address resulting
* Corresponding author.
Email: mjmace02@yahoo.com
1
Paris Agreement (Paris, 12 December 2015; not yet in force).
2
UNFCCC, Decision 1/CP.21, Adoption of the Paris Agreement (UN
Doc. FCCC/CP/2015/10/Add.1, 29 January 2016).
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197
RECIEL 25 (2) 2016. ISSN 2050-0386 DOI: 10.1111/reel.12172
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Review of European Community & International Environmental Law

needs, including one that links anthropogenic emis-
sions more directly to the provision of support, if that
is a direction in which the parties are prepared to
move.
BRIEF HISTORY OF LOSS AND
DAMAGE IN THE CLIMATE REGIME
There is no precise definition of the concept of ‘loss
and damage’in the Convention or Paris Agreement,
much in the same way that there is no definition of
‘adaptation’.
3
However, it is well understood that this
phrase relates to the desire of vulnerable countries,
and especially SIDS, to secure formal recognition from
the international community that there are adverse
impacts of human-induced climate change that cannot
be avoided by mitigation or adaptation, or that will
not be avoided in the future by adaptation due to
insufficient resources, and that must be addressed at
the international level under the climate regime due
to the equities involved.
4
Discussions on how best to address the permanent
and irreversible impacts of climate change have been
a feature of the climate regime since its very begin-
ning. The phrase ‘loss and damage’, and its associa-
tion with insurance and insurance-related tools and
approaches, goes back to a proposal made by the
Alliance of Small Island States (AOSIS) in 1991 when
the UNFCCC was being negotiated. At that time,
AOSIS, a newly formed group of small island nations,
proposed the establishment of an international insur-
ance pool as a ‘collective loss-sharing scheme’to
‘compensate the most vulnerable small island and
low-lying coastal developing countries for loss and
damage arising from sea level rise’.
5
Funding for this
pool was to come from assessed contributions ‘ac-
cording to a formula modelled on the 1963 Brussels
Supplementary Convention on Third Party Liability
in the field of Nuclear Energy’, with 50% based on
parties’relative contributions to emissions in the year
prior to a ‘contribution year’, and 50% based on par-
ties’relative shares of global gross national product
in the year prior to the contribution year.
6
These
accumulated resources would be used to cover a fixed
period of insurance payouts. If funds were insuffi-
cient to cover claims, they would be paid out on an
equitable basis.
AOSIS’s proposed Insurance Annex was not
accepted and did not become part of the Conven-
tion. However, markers of this debate are found in
the Convention’s reference to ‘insurance’in Article
4.8, as a measure that may be necessary under the
Convention ‘to meet the specific needs and concerns
of developing country Parties arising from the
adverse effects of climate change’,
7
and in Article
4.4’s commitment by developed countries to ‘assist
the developing countries that are particularly vul-
nerable to the adverse effects of climate change in
meeting the costs of adaptation to those adverse
effects’.
8
At the first UNFCCC COP in 1995, agreement was
reached on initial guidance to the Convention’s Finan-
cial Mechanism, setting out a staged approach to adap-
tation funding as follows:
9
Stage I: Planning, which includes studies of possible impacts
of climate change, to identify particularly vulnerable coun-
tries or regions and policy options for adaptation and appro-
priate capacity-building;
3
Article 1 of the United Nations Framework Convention on Climate
Change (New York, 9 May 1992; in force 21 March 1994) (‘UNFCCC’)
defines ‘adverse effects of climate change’ as ‘changes in the physical
environment or biota resulting from climate change which have
significant deleterious effects on the composition, resilience or
productivity of natural and managed ecosystems or on the operation
of socio-economic systems or on human health and welfare’. See also
UNFCCC, Non-economic Losses in the Context of the Work Pro-
gramme on Loss and Damage (UN Doc. FCCC/TP/2013/2, 9 October
2013), at paragraph 32 (‘[l]oss and damage describes the impact
associated with the adverse effects of climate change, including those
related to extreme events and slow onset events such as sea-level
rise, increasing temperatures, ocean acidification, glacial retreat and
related impacts, salinization, land and forest degradation, loss of
biodiversity and desertification’).
4
See B. Ohdedar, ‘Loss and Damage from the Impacts of Climate
Change: A Framework for Implementation’, 85:1 Nordic Journal of
International Law (2016), 1, at 2. See also M. Schaeffer et al.,Loss
and Damage in Africa (United Nations Economic Commission for
Africa and African Climate Policy Centre, 2014), at 15; and M. Schaef-
fer et al.,Africa Adaptation Gap Technical Report (United Nations
Environment Programme (UNEP), 2013), at xi, Figure ES.2 (both
describing ‘residual damages’ as loss and damage remaining after
adaptation, or as damages not avoided by adaptation).
5
See Intergovernmental Negotiating Committee (INC), Preparation of
a Framework Convention on Climate Change, Set of Informal Papers
Provided by Delegations, Related to the Preparation of a Framework
Convention on Climate Change (UN Doc. A/AC.237/Misc.1/Add.3, 18
June 1991), at 18–32 (Paper No. 16: Vanuatu on behalf of AOSIS);
and INC, Report of the Intergovernmental Negotiating Committee for a
Framework Convention on Climate Change on the Work of its Fourth
Session, held at Geneva from 9 to 20 December 1991 (UN Doc. A/
AC.237/15, 29 January 1992), at 20, 21, 46, 80, 126–130 (Annex V
Insurance Mechanism). The text of the proposed AOSIS Insurance
Annex can be found at: <http://unfccc.int/resource/docs/a/15_2.pdf>.
6
Ibid., A/AC.237/15, at 127–129. J. Linnerooth-Bayer, M.J. Mace and
R. Verheyen, ‘Insurance-Related Actions and Risk Assessment in the
Context of the UNFCCC’ (May 2003), found at: <http://unfccc.int/files/
meetings/workshops/other_meetings/application/pdf/background.pdf>.
7
UNFCCC, n. 3 above, Article 4.8.
8
Ibid., Article 4.4.
9
UNFCCC, Decision 11/CP.1, Initial Guidance on Policies, Pro-
gramme Priorities and Eligibility Criteria to the Operating Entity or
Entities of the Financial Mechanism (UN Doc. FCCC/CP/1995/7/
Add.1, 6 June 1995), at paragraph 1(d)(i–ii). For more on this and
financial obligations under the UNFCCC, see R. Verheyen, Climate
Change Damage in International Law (Brill, 2005), at 130ff. and 160ff.
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M.J. MACE AND RODA VERHEYEN RECIEL 25 (2) 2016

Stage II: Measures, including further capacity-building,
which may be taken to prepare for adaptation, as envisaged
by Article 4.1(e);
Stage III: Measures to facilitate adequate adaptation, includ-
ing insurance, and other adaptation measures as envisaged
by Article 4.1(b) and 4.4.
Stages II and III were envisaged for the medium and
long term, for the particularly vulnerable countries or
regions identified in Stage I. ‘Insurance’is explicitly
mentioned as a Stage III adaptation measure to facili-
tate ‘adequate’adaptation, to be funded by the Conven-
tion’sfinancial mechanism. Decision 11/CP.1 explicitly
links Stage III measures with funding support under
Articles 4.3 and 4.4.
In 2001, by Decision 5/CP.7, the COP agreed to hold a
set of workshops on the basis of Article 4.8, to support
the implementation of insurance-related actions to
address the needs of developing country parties arising
from the adverse effects of climate change.
10
These two
workshops were held in 2003.
11
The background paper
for the event identified insurance-related strategies and
tools used by other treaty processes to address impacts
and related financial risk from transboundary pollution
events, including risk layering, risk transfer, risk pool-
ing and collective loss sharing elements under the
nuclear, oil spill, hazardous substance transport and
marine transport regimes.
12
The workshop report
noted, among other things, that a case could be made
for burden sharing and international risk transfer via
an international insurance pool, as originally proposed
by AOSIS, especially in the least-developed countries
(LDCs).
13
In 2004, developing countries negotiated for follow-up
activities to Decision 5/CP.7. They secured agreement
to hold another series of regional workshops, and ‘[o]ne
expert meeting for small island developing States,
reflecting issues of priority identified by that group’no
later than November 2007.
14
The SIDS Expert Work-
shop on Adaptation took place in two parts in February
2007, looking at adaptation, risk management, risk
reduction and insurance, addressing a range of pro-
jected impacts of climate change in SIDS. Insurance-
related tools were identified as a way to both minimize
loss and damage and create systems that could provide
resources for tailored solutions for SIDS to support
rehabilitation.
15
In August 2007, AOSIS made a written submission to
the ‘Dialogue on long-term cooperative action to
address climate change by enhancing implementation
of the Convention’,
16
a negotiating stream under the
Convention held in parallel to discussions under the
Ad Hoc Working Group on the Kyoto Protocol, on a
second set of Kyoto Protocol commitments. AOSIS
again called for an international insurance mecha-
nism to help SIDS manage climate risk and build
resilient economies. AOSIS noted that an Adaptation
Fund constituted under the Convention could be used
to establish an international insurance fund, which in
turn could both support risk management and offer
compensation for loss and damage not avoided by
adaptation activities and funding under the Conven-
tion.
17
In late 2007, loss and damage, risk sharing and risk
transfer were given an increased profile at COP13. The
Bali Action Plan, the central outcome of these
negotiations, referenced these elements in the context
of ‘enhanced action on adaptation’that would be con-
sidered through the newly established Ad Hoc Working
Group on Long-term Cooperative Action under the
Convention (AWG-LCA) –the body expected to deliver
a global agreement at COP15 in Copenhagen.
18
The
AWG-LCA at its first session agreed to organize a work-
shop at COP14 on ‘risk management and risk reduction
strategies, including risk sharing and transfer mecha-
nisms such as insurance’.
19
10
UNFCCC, Decision 5/CP.7, Implementation of Article 4, Para-
graphs 8 and 9, of the Convention (Decision 3/CP.3 and Article 2,
Paragraph 3, and Article 3, Paragraph 14, of the Kyoto Protocol) (UN
Doc. FCCC/CP/2001/13/Add.1, 21 January 2002), at paragraphs 9,
34–35 (deciding to consider at COP8 ‘the implementation of
insurance-related actions to meet the specific needs and concerns of
developing country Parties arising from the adverse effects of climate
change, based on the outcome of the workshops referred to in para-
graphs 34 and 35 below’). Many activities under the UNFCCC have
addressed the concept of insurance within the climate regime. See
generally O. Schwank et al., Insurance as an Adaptation Option under
the UNFCCC (INFRAS, 2010).
11
See <http://unfccc.int/adaptation/adverse_effects_and_response_
measures_art_48/items/3959.php>.
12
See, e.g., J. Linnerooth-Bayer et al., n. 6 above.
13
UNFCCC, Report on the UNFCCC Workshops on Insurance (UN
Doc. FCCC/SBI/2003/11, 25 August 2003).
14
UNFCCC, Decision 1/CP.10 (UN Doc. FCCC/CP/2004/10/Add.1,
19 April 2015), at paragraphs 8–9.
15
See <http://unfccc.int/adaptation/adverse_effects_and_response_
measures_art_48/items/3897.php>; UNFCCC, Report on the Expert
Meeting on Adaptation for Small Island Developing States (UN Doc.
FCCC/SBI/2007/11, 2 April 2007), at paragraphs 49–51.
16
See ‘Dialogue Working Paper 14, Submission from AOSIS’ (24
August 2007) (‘2007 AOSIS Dialogue Working Paper’), found at: <https://
unfccc.int/files/meetings/dialogue/application/pdf/wp14-aosis.pdf>.
17
Ibid., at 4–5, 7, 9 and 11–12.
18
UNFCCC, Decision 1/CP.13, Bali Action Plan (UN Doc. FCCC/CP/
2007/6/Add.1, 14 March 2008), at paragraphs 1(c)(i–iii) and 2.
19
UNFCCC, Report of the AWG-LCA on its first session (UN Doc.
FCCC/AWGLCA/2008/3, 16 May 2008), at paragraph 26 and Annex I.
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At COP14, in 2008, this in-session workshop was
supported by three technical papers.
20
AOSIS joined
other parties in giving presentations,
21
and also sub-
mitted a formal proposal for the establishment of a
‘Multi-Window Mechanism to address loss and dam-
age’,
22
consisting of three interdependent compo-
nents:
(i) An Insurance Component to help SIDS and other
particularly vulnerable developing countries man-
age financial risk from increasingly frequent and
severe extreme weather events.
(ii) A Rehabilitation/Compensatory Component to
address the progressive negative impacts of cli-
mate change, such as sea-level rise, increasing land
and sea surface temperatures, and ocean acidifica-
tion, which result in loss and damage.
(iii) A Risk Management Component to support and
promote risk assessment and risk management
tools and facilitate and inform the Insurance
Component and Rehabilitation/Compensatory
Component.
AOSIS proposed a Technical Facility and a Financial
Facility to support all three components, with fund-
ing from assessed contributions, based on Parties'
greenhouse gas emissions as a measure of responsi-
bility and gross domestic product as a measure of
capability, supplemented by funding from other
sources. The 'Rehabilitation/Compensatory Compo-
nent' –to address loss and damage –could operate,
AOSIS suggested, through fixed (negotiated) baseli-
nes and exceedances of parameters that might
trigger payments.
23
Several discussion papers were
also circulated informally at COP14, including a
World Wide Fund for Nature (WWF) discussion
paper entitled ‘Beyond Adaptation’, which contained
similar ideas and suggested a ‘Compensation Proto-
col’to regulate loss and damage due to climate
change on the international level.
24
The AOSIS pro-
posal and the WWF paper drew attention to the reg-
ulatory gap concerning loss and damage ‘beyond
adaptation’, and set the term ‘compensation’as an
issue for discussion in the corridors.
In 2009, AOSIS included provisions to establish a
mechanism for loss and damage in Article 3 of its
proposed ‘Copenhagen Protocol to Enhance the
Implementation of the United Nations Framework
Convention on Climate Change’on adaptation.
25
This
iteration of the mechanism would have addressed
people displaced by climate change, loss and damage
from the adverse effects of climate change, risks
associated with extreme weather events and compen-
sation and rehabilitation for loss and damage result-
ing from climate-related slow onset events, including
sea-level rise, increasing temperatures and ocean
acidification.
26
Funding was proposed at that time
through an ‘adaptation’and ‘insurance’windows of a
new multilateral fund on climate change.
In 2010, in the wake of the failed Copenhagen COP,
omnibus Decision 1/CP.16 aimed to keep the multilateral
process alive by capturing the key concerns of all parties.
Under the heading ‘Enhanced Action on Adaptation’,it
recognized the need to ‘strengthen international cooper-
ation and expertise in order to understand and reduce
loss and damage associated with the adverse effects of
climate change, including impacts related to extreme
weather events and slow onset events’.
27
In a footnote,
slow onset events were defined to include sea-level rise,
increasing temperatures, ocean acidification, glacial
retreat and related impacts, salinization, land and forest
degradation, loss of biodiversity and desertification.
28
The parties launched a ‘work programme on loss and
damage’‘to consider ... approaches to address loss and
damage associated with climate change impacts in devel-
oping countries that are particularly vulnerable to the
20
See <http://unfccc.int/bodies/awg-lca/items/4670.php>; UNFCCC,
Report on the Workshop on Risk Management and Risk Reduction
Strategies, Including Risk Sharing and Transfer Mechanisms such as
Insurance (UN Doc. FCCC/AWGLCA/2008/CRP.7, 6 December
2008); UNFCCC, Report of the Ad Hoc Working Group on Long-term
Cooperative Action under the Convention on its Second Session,
Held in Bonn from 2 to 12 June 2008 (UN Doc. FCCC/AWGLCA/2008/
8, 15 July 2008), at paragraph 28(b); UNFCCC, Physical and Socio-
economic Trends in Climate-Related Risks and Extreme Events, and
their Implications for Sustainable Development (UN Doc. FCCC/TP/
2008/3, 20 November 2008); UNFCCC, Integrating Practices, Tools
and Systems for Climate Risk Assessment and Management and
Strategies for Disaster Risk Reduction into National Policies and Pro-
grammes (UN Doc. FCCC/TP/2008/4, 21 November 2008); and
UNFCCC, Mechanisms to Manage Financial Risks from Direct
Impacts of Climate Change in Developing Countries (UN Doc. FCCC/
TP/2008/9, 21 November 2008) (UNFCCC, ‘Mechanisms to Manage
Financial Risks’).
21
See n. 20 above; and AOSIS, Risk Management and Risk Reduc-
tion Strategies, Including Risk Sharing and Risk Transfer Mechanisms
such as Insurance (4 December 2008), found at: <https://unfccc.
int/files/kyoto_protocol/application/pdf/aosisrisk.pdf>.
22
Submission of Alliance of Small Island States, in: UNFCCC, Ideas
and Proposals on the Elements Contained in Paragraph 1 of the Bali
Action Plan, Submissions from Parties, Addendum, Part I (UN Doc.
FCCC/AWGLCA/2008/Misc.5/Add.2 (Part I), 10 December 2008), at
9–32 (‘2008 AOSIS Proposal’).
23
Ibid., at 15, 27, 30. As yet, there has been no detailed consideration
at this level of specificity by UNFCCC parties.
24
P. Roderick and R. Verheyen, ‘Beyond Adaptation’ (WWF, 2008).
25
AOSIS Submission, ‘Copenhagen Protocol to Enhance the Imple-
mentation of the United Nations Framework Convention on Climate
Change’, in: UNFCCC, Ideas and Proposals on the Elements Con-
tained in Paragraph 1 of the Bali Action Plan, Submissions from Par-
ties (UN Doc. FCCC/AWGLCA/2009/MISC.8, 18 December 2009),
Articles 3.2 and 3.11–12.
26
Ibid.
27
UNFCCC, Decision 1/CP.16, The Cancun Agreements: Outcome
of the Work of the Ad Hoc Working Group on Long-term Cooperative
Action under the Convention (UN Doc. FCCC/CP/2010/7/Add.1, 15
March 2011), at paragraph 25.
28
Ibid., at paragraph 25, footnote 3.
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M.J. MACE AND RODA VERHEYEN RECIEL 25 (2) 2016

adverse effects of climate change’
29
and in 2011, at
COP17, agreed on the content of this work programme.
30
In late 2012, following a series of written submissions,
31
expert meetings and late night negotiations, and cer-
tainly over the discomfort of developed country parties,
COP18 in Doha agreed to establish ‘institutional
arrangements ...to address loss and damage associated
with the impacts of climate change in developing coun-
tries that are particularly vulnerable to the adverse
effects of climate change’.
32
This enabled the adoption
of the Doha package of decisions, which included out-
comes under both the Convention and Kyoto Protocol.
Emission reduction pledges and commitments at the
time were recognized as inconsistent with the below 2
°C long-term temperature limitation goal adopted at
COP16.
Finally, in Warsaw in 2013, some 20 years after AOSIS
first sought a mechanism to address loss and damage in
connection with the negotiation of the Convention, by
Decision 2/CP.19 the Parties decided ‘to establish an
international mechanism 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’. Parties agreed to conduct a
review of the new WIM, ‘including its structure, man-
date and effectiveness’, at COP22 in 2016.
33
For many, the adoption of the WIM signalled that there
are now essentially three topical strands in the climate
negotiations: mitigation, adaptation, and loss and dam-
age associated with climate change.
THE WARSAW INTERNATIONAL
MECHANISM
ESTABLISHMENT AND MANDATE
As Burkett has pointed out, the WIM consists of a
‘rather conservative, approach to developing a loss-and-
damage infrastructure’.
34
The WIM’smandateisbroad,
but the operative paragraphs of Decision 2/CP.19 clearly
reflect political compromise. Under Decision 2/CP.19,
paragraph 5, the parties agree that the WIM ‘shall fulfil
the role under the Convention of promoting the imple-
mentation of approaches to address loss and damage
associated with the adverse effects of climate change, by
undertaking, inter alia, the following functions’:
35
(a) Enhancing knowledge and understanding of com-
prehensive risk management approaches to
address loss and damage associated with the
adverse effects of climate change, including slow
onset impacts ...;
(b) Strengthening dialogue, coordination, coherence
and synergies among relevant stakeholders ...;
(c) Enhancing action and support, including finance,
technology and capacity building to address loss
and damage ...
36
In exercising these functions, paragraph 7 provides that
the WIM ‘will, inter alia’:
(a) Facilitate support of actions to address loss and
damage;
(b) Improve coordination of the relevant work of
existing bodies under the Convention;
(c) Convene meetings of relevant experts and stake-
holders;
(d) Promote the development of, and compile, anal-
yse, synthesize and review information;
(e) Provide technical guidance and support;
(f) Make recommendations, as appropriate, on how
to enhance engagement, actions and coherence
under and outside the Convention, including on
how to mobilize resources and expertise at differ-
ent levels.
37
An Executive Committee (ExCom) has been established
as the WIM’s governance body. The ExCom functions
under the guidance of, and is accountable to, the COP,
29
Ibid., at paragraphs 26–29. The UNFCCC, n. 3 preamble, recog-
nizes that low-lying and other small island countries, countries with
low-lying coastal, arid and semi-arid areas or areas liable to floods,
drought and desertification, and developing countries with fragile
mountainous ecosystems are particularly vulnerable to the adverse
effects of climate change. Decision 1/CP.16, n. 27 above, at para-
graph 1(c)(i), identifies SIDS and LDCs as particularly vulnerable.
Paris Agreement, n. 1 above, Article 11, refers to ‘those that are partic-
ularly vulnerable to the adverse effects of climate change, such as
small island developing States’.
30
UNFCCC, Decision 7/CP.17, Work Programme on Loss and Dam-
age (UN Doc. FCCC/CP/2011/9/Add.2, 15 March 2012).
31
See UNFCCC, Views and Information from Parties and Relevant
Organizations on the Possible Elements to be Included in the Recom-
mendations on Loss and Damage in Accordance with Decision
1/CP.16 (UN Doc. FCCC/SBI/2012/MISC.14, 8 October 2012); and
UNFCCC, Views and Information from Parties and Relevant
Organizations on the Possible Elements to be Included in the Recom-
mendations on Loss and Damage in Accordance with Decision
1/CP.16 (UN Doc. FCCC/SBI/2012/MISC.14/Add.1, 19 November
2012).
32
UNFCCC, Decision 3/CP.18, Approaches to Address Loss and
Damage Associated with Climate Change Impacts in Developing
Countries that are Particularly Vulnerable to the Adverse Effects of Cli-
mate Change to Enhance Adaptive Capacity (UN Doc. FCCC/CP/
2012/8/Add.1, 28 February 2013), at paragraph 9.
33
UNFCCC, Decision 2/CP.19, Warsaw International Mechanism for
Loss and Damage Associated with Climate Change Impacts (UN Doc.
FCCC/CP/2013/10/Add.1, 31 January 2014), at paragraph 15.
34
M. Burkett, ‘Loss and Damage’, 4:1–2Climate Law (2014), 119, at
128.
35
Decision 2/CP.19, n. 33 above, at paragraph 5.
36
Ibid.
37
Ibid., at paragraph 7; see M. Burkett, n. 34 above; D. Stabinsky and
J. Hoffmaister, ‘Establishing Institutional Arrangements on Loss and
Damage under the UNFCCC: The Warsaw International Mechanism
for Loss and Damage’, 8:2 International Journal of Global Warming
(2015), 295; M. Doelle, ‘The Birth of the Warsaw Loss & Damage
Mechanism: Planting a Seed to Grow Ambition?’, 8:1 Carbon and Cli-
mate Law Review (2014), 35.
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and is responsible for guiding the functions of the WIM
referred to in Decision 2/CP.19, paragraph 5.
38
The
ExCom is requested to report annually to the COP
throughboththeSubsidiaryBodyforScientificandTech-
nological Advice (SBSTA) and the Subsidiary Body for
Implementation (SBI) and to make recommendations as
appropriate.
39
It is also empowered to establish ‘expert
groups, subcommittees, panels, thematic advisory groups
or task-focused ad hoc working groups’to help it execute
the work of the WIM, in an advisory role.
40
Decision 2/CP.19 was not mirrored by a decision on
finance and did not open a new or additional funding
stream for the WIM ExCom or the WIM’s activities,
leaving it unclear how the work of the WIM will be
funded and sustained over the longer term. While the
WIM ExCom can establish expert groups and panels,
thus far there has been no real influx of technical
expertise, as had been hoped by developing countries
who had sought to establish a ‘mechanism’with techni-
cal advisory functions and financial functions. Because
the WIM and its ExCom are entities established only by
COP decision,
41
they do not exist in an independent
legal sense outside the climate regime, nor are they ‘le-
gal entities’, such that they can enter into contracts,
commission work and disburse funds.
42
As a result, the WIM is essentially a mechanism with
powers ‘in progress’, and with functions to be
elaborated over time: its three enumerated functions
were agreed ‘inter alia’in paragraph 5 and need not be
understood as a closed set of functions; the WIM’s tasks
under paragraph 7 are also ‘inter alia’; and the WIM’s
‘structure, mandate and effectiveness’is slated for
review at COP22 in 2016. In agreeing to this review in
Warsaw, developing countries hoped that a broader
mandate would be achieved, embedding necessary tech-
nical and financial functions.
WIM WORK PLAN
The WIM ExCom was tasked to develop an initial two-
year work plan. A call for submission of views generated
over 150 proposed activities from parties, intergovern-
mental organizations and nongovernmental organiza-
tions.
43
The work plan eventually agreed at COP20
44
has nine ‘action areas’under which WIM activities sit.
These action areas have lengthy, carefully worded titles,
which the ExCom for short hand refers to as:
1. Particularly vulnerable developing countries,
population, ecosystems
2. Comprehensive risk management approaches
3. Slow onset events
4. Non-economic losses
5. Resilience, recovery and rehabilitation
6. Migration, displacement and human mobility
7. Financial instruments and tools
8. Complement, draw upon the work of and involve
other bodies
9. Development of a 5-year rolling work plan.
45
The longer, more precise, wording of some of these
action areas provides important context:
3. Enhance data on and knowledge of the risks of slow
onset events and their impacts, and identify ways
forward on approaches to address slow onset
events associated with the adverse effects of cli-
mate change ...
4. Enhance data on and knowledge of non-economic
losses associated with the adverse effects of climate
change and identify ways forward for reducing the
risk of and addressing non-economic losses ...
5. Enhance the understanding of the capacity and coordi-
nation needs with regard to preparing for, responding
to and building resilience against loss and damage
associated with extreme and slow onset events,
including through recovery and rehabilitation.
6. Enhance the understanding of and expertise on
how the impacts of climate change are affecting
patterns of migration, displacement and human
mobility; and the application of such understand-
ing and expertise.
46
The WIM’s initial work plan represents a first step,
explicitly stressing of ‘identifying ways forward’for
most action areas. However, the WIM’s‘action areas’
will only be as effective as the activities agreed within
38
UNFCCC, Decision 2/CP.20, Warsaw International Mechanism for
Loss and Damage Associated with Climate Change Impacts (UN Doc.
FCCC/CP/2014/10/Add.2, 2 February 2015), at paragraphs 3–4.
39
Decision 2/CP.19, n. 33 above, at paragraphs 2–3; Decision
2/CP.20, n. 38 above, at paragraph 4.
40
Decision 2/CP.20, n. 38 above, at paragraph 8.
41
The nature of COP decisions is a matter of ongoing debate. Gener-
ally, as the COP is not an international organization, its decisions have
no binding force beyond the treaty regime. Such decisions are often
referred to a ‘secondary law’. See R. Verheyen, n. 9 above, at 67ff.;
and J. Brunn
ee, ‘COPing with Consent: Law-Making under Multilateral
Environmental Agreements’, 15:1 Leiden Journal of International Law
(2002), 1.
42
Compare UNFCCC, Decision 1/CMP.4, Adaptation Fund (UN Doc.
FCCC/KP/CMP/2008/11/Add.2, 19 March 2009), at paragraph 11
(eventually giving legal capacity to the Adaptation Fund to enter into
contracts and disburse funds).
43
These included detailed inputs from AOSIS, the LDC Group and
the African Group. See <http://unfccc.int/adaptation/groups_commit-
tees/loss_and_damage_executive_committee/items/8422.php>.
44
Decision 2/CP.20, n. 38 above; UNFCCC, Report of the Executive
Committee of the Warsaw International Mechanism for Loss and Dam-
age Associated with Climate Change Impacts (UN Doc. FCCC/SB/
2014/4, 24 October 2014) (‘2014 ExCom Report’), at Annex II.
45
Summary of ExCom 2 conclusions (5 February 2016), found at:
<https://unfccc.int/files/adaptation/groups_committees/loss_and_dam-
age_executive_committee/application/pdf/summary_of_decisions_5_
feb.pdf>.
46
See 2014 ExCom Report, n. 43 above, at Annex II (emphasis
added). Work plan action areas and activities can be found at: <http://
unfccc.int/adaptation/workstreams/loss_and_damage/items/8805.
php>.
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M.J. MACE AND RODA VERHEYEN RECIEL 25 (2) 2016

them. The individual activities agreed thus far under
these headings have not been ambitious, they do not yet
have a clear strategic end goal or purpose and there is
no clear time frame for the delivery of ‘ways forward’
and ‘next steps’. The WIM ExCom is comprised of an
equal number of developed and developing country rep-
resentatives and it is required to take decisions by con-
sensus.
47
Accordingly, a degree of compromise is to be
expected among party representatives, but there is
room for much greater ambition to fulfil the WIM's
mandate nevertheless.
PARIS NEGOTIATING POSITIONS
AND OUTCOMES
Before Paris, AOSIS and the LDC Group had loss and
damage firmly in their ‘must-have’category for the
Paris Agreement, alongside ambitious mitigation com-
mitments, a 1.5 °C long-term temperature goal in the
purpose of the agreement, and strengthened provisions
on adaptation and finance.
48
Initial textual inputs from parties with respect to loss
and damage are reflected in the Geneva Negotiating
Text.
49
Developing countries sought a body that would
not just enhance understanding and share information,
but that would actually develop a system, within a fixed
time frame, to address loss and damage. They did not
wish to lose the progress made in setting up the WIM
by starting over with a completely new mechanism. But,
by the same token, they wanted a body with a stronger
mandate responsible for loss and damage. Their central
concern was that vulnerable developing countries
should not be left to address loss and damage at the
national level without financial and technical support
(e.g., as part of their own National Adaptation Plans),
but that loss and damage should be recognized as a field
of international activity, with tools developed at the
international level to provide this support, given the
equities involved. They were also concerned about the
possible loss of the WIM post-Paris, in the course of the
2016 review of the WIM, mandated by Decision
2/CP.19.
Developed countries meanwhile had little interest in
drawing attention to loss and damage. They argued that
loss and damage was being addressed satisfactorily
under the WIM, and the WIM should be given time to
show what it could deliver. If references to loss and dam-
age were needed for political reasons (i.e., to secure an
agreement), developed countries sought to place these
references in the context of adaptation efforts (e.g., mea-
sures to lessen loss and damage), not separate from
adaptation, and not in a separate section with its own
heading. The ‘red line’for developed country parties, and
especially the United States (US), was the issue of com-
pensation, though the intent and scope of this term was
never defined or described with any precision by any
party. The US in particular wanted to avoid any refer-
ence to loss and damage or compensation that might
jeopardize its ability to ratify an internationally legally
binding Paris outcome. For domestic reasons, it wished
to be able to ratify any binding outcome by Executive
Agreement (rather than through Congressional
approval).
50
To this end, it wished to ensure that any final
text adopted could be understood, if necessary, as an
implementing agreement, within the COP’s existing
mandate, under Article 7 of the Convention (as the US
had proposed in Copenhagen). For this reason, it was
also important to the US that the Agreement not produce
any new obligations on finance or on loss and damage.
51
Accordingly, the most contentious issues for Paris with
respect to loss and damage were:
52
•WIM or new mechanism: whether a new mechanism
should be created under the new treaty, or whether
the WIM should be maintained and possibly
strengthened under the Convention.
47
Decision 2/CP.20, n. 38 above.
48
See, e.g., Statement by Maldives on behalf of the Alliance of Small
Island States at the Opening of the Ad Hoc Working Group on the
Durban Platform for Enhanced Action (31 August 2015), found at:
<http://aosis.org/wp-content/uploads/2015/08/UNFCCC-ADP-Open-
ing-Statement-Bonn-31-August-2015.pdf>; Statement by Maldives
on behalf of the Alliance of Small Island States at the Opening of the
Ad Hoc Working Group on the Durban Platform for Enhanced Action
(19 October 2015), found at: <http://www4.unfccc.int/Submissions/
Lists/OSPSubmissionUpload/211_129_130897438389200212-ADP
%20Opening%20Statement_19_10.pdf>;SubmissionofNauruon
behalf of the Alliance of Small Island States on its views on Loss and
Damage in the 2015 Agreement (4 November 2014), found at:
<http://aosis.org/wp-content/uploads/2014/11/UNFCCC-Loss-and-
Damage-Submission-Nov.-2014.pdf>; Statement by the Republic
of Angola on behalf of the Least Developed Countries (LDC) (1
June 2015), found at: <http://www4.unfccc.int/Submissions/Lists/
OSPSubmissionUpload/213_128_130776534859226605-LDCADPo-
pening_Final.pdf>.
49
See UNFCCC, Negotiation Text (UN Doc. FCCC/ADP/2015/1, 25
February 2015) (‘Geneva Negotiating Text’), at paragraphs 50, 65,
68–70, 78, 81 and 89–90. See, e.g., AOSIS, ‘New Text to include
in Loss and Damage Section –As a New Paragraph’ (9 February
2015), found at: <http://aosis.org/wp-content/uploads/2015/03/
UNFCCC-Geneva-2_2015-Loss-and-Damage-.pdf>. Developed
countries did not present specific textual proposals until much later
in the negotiating process.
50
See D. Bodansky, ‘Legal Options for U.S. Acceptance of a New Cli-
mate Change Agreement’ (Center for Climate and Energy Solutions,
2015), at 5–8, 13–14 and 16–17.
51
Ibid.
52
Geneva Negotiating Text, n. 49 above. On finance, see ibid., at
paragraphs 89–90 (referring to ‘financing loss and damage’, a ‘special
window’ for loss and damage, and a ‘Loss and Damage Fund’). For
more on parties’ negotiating positions on loss and damage generally,
see: M. Burkett, ‘Reading between the Lines: Loss and Damage and
the Paris Outcome’, 6:1–2Climate Law (2016), 118; G. Taraska,
‘The Meaning of Loss and Damage in the International Climate
Negotiations’ (30 September 2015), found at: <https://cdn.american-
progress.org/wp-content/uploads/2015/09/29134813/LossAndDama-
gefinal.pdf>.
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RECIEL 25 (2) 2016 LOSS, DAMAGE AND RESPONSIBILITY AFTER COP21

•Distinction between adaptation and loss and dam-
age: whether loss and damage and adaptation would
be reflected in the agreement as separate and dis-
tinct issues.
•Dedicated article: whether loss and damage would
be addressed in a separate article of the new agree-
ment or whether a reference to the WIM in a COP
decision or in an article linking adaptation and loss
and damage would suffice to address developing
country concerns.
•Compensation and liability: whether and how the
issue of financial responsibility ('compensation and
liability') would be addressed.
•Finance: whether a specific funding stream would
be created or identified for loss and damage.
Given the lack of aggregate mitigation effort evident in
parties’intended nationally determined mitigation con-
tributions,
53
developing countries were eager to see loss
and damage reflected in the Paris Agreement itself if
there were to be an agreement at all. This became the
space for trade-offs. In the end, assisted by the French
Presidency, the parties managed to find a compromise
on all of the above:
•No new mechanism to address loss and damage is
created; the WIM is maintained but ‘may’be
strengthened through the Paris Agreement.
•TheconcernthattheWIMmightnotsurvivebeyond
the Paris Agreement is addressed through Decision
1/CP.21, paragraph 47, which ‘[d]ecides on the con-
tinuation of the [WIM], following the review in
2016’
54
and Article 8 of the Agreement, which
together take as a given the WIM’s continued exis-
tence.
•All Paris Agreement articles are untitled. Loss and
damage is addressed in its own dedicated Article of
the Agreement –Article 8 –which emerged from
the negotiations on loss and damage but which bears
no title. This provision is clearly separate from Arti-
cle 7, which covers adaptation, but also separate
from Article 9, which covers finance and support.
Decision 1/CP.21 contains a separate heading ‘loss
and damage’, and introduces five paragraphs of
decision text related to the WIM, its mandate and
interpretation of the Paris Agreement.
55
•Compensation and liability is not addressed in the
Paris Agreement, but is addressed explicitly in
Decision 1/CP.21.
•No new and specific funding stream is established
for loss and damage.
56
ARTICLE 8 OF THE PARIS
AGREEMENT AND DECISION
1/CP.21 ON LOSS AND DAMAGE
The Paris outcomes on loss and damage are found in
two places: (i) the Paris Agreement itself, an agreement
adopted pursuant to the Durban Mandate ‘under’the
Convention, but also a separate treaty in the sense of
the Vienna Convention on the Law of the Treaties;
57
and (ii) in Decision 1/CP.21 adopting the Paris Agree-
ment, and to which the Agreement is annexed.
58
In the previous section, we highlighted some of the key
outcomes of the Paris negotiations. Below, we discuss
some issues that remain challenging following the
adoption of these outcomes: the implications of
paragraph 51 of Decision 1/CP.21; the relationship
between the CMA and the COP in the context of the
WIM after Paris; the WIM’s link to finance; and out-
comes on insurance and displacement. We then briefly
address the role of the WIM after adoption of the Paris
Agreement.
COMPENSATION AND LIABILITY:
PARAGRAPH 51 OF DECISION
1/CP.21
Through paragraph 51 of Decision 1/CP.21, the
UNFCCC COP ‘[a]grees that Article 8 of the Agreement
does not involve or provide a basis for any liability or
compensation’.
59
This paragraph has caused consterna-
tion among those interested in climate justice since its
adoption. What does this paragraph actually mean?
Does it constrain the work and development of the
WIM under the Paris Agreement?
Despite the parties’agreement to include this
interpretive paragraph in the Paris Agreement’s adopt-
ing decision, the terms ‘compensation’and ‘liability’
53
See UNEP, The Emissions Gap Report 2015 (UNEP, 2015);
UNFCCC, Synthesis Report on the Aggregated Effect of the Intended
Nationally Determined Contributions (UN Doc. FCCC/CP/2015/7, 30
October 2015) (covering 119 contributions communicated by 1 Octo-
ber 2015).
54
Paragraph 47’s wording is slightly ambiguous, due to the location of
the comma; has a decision to continue the WIM been taken in Paris,
or has a decision been taken to take a decision after the review?
Nevertheless, references to the WIM in Decision 1/CP.21 and in the
Paris Agreement itself signal that the WIM will continue.
55
Decision 1/CP.21, n. 2 above, at paragraphs 47–51.
56
For a take on two of these aspects of the Paris outcome, see S.
Biniaz, ‘Comma but Differentiated Responsibilities: Punctuation and
30 Other Ways Negotiators have Resolved Issues in the International
Climate Change Regime’ (Sabin Center for Climate Change Law,
June 2016), at 21, 23 (regarding a distinct Article for loss and damage
and the reference to compensation and liability).
57
See D. Bodansky, ‘The Legal Character of the Paris Agreement’,
25:2 Review of European, Comparative and International Environ-
mental Law (2016), 142.
58
UNFCCC, Decision 2/CP.21, Warsaw International Mechanism for
Loss and Damage Associated with Climate Change Impacts (UN Doc.
FCCC/2015/10/Add.1, 29 January 2016), also adopted in Paris,
addresses the ongoing work of the WIM. See D. Bodansky, n. 57
above for further analysis of the relationship between the Agreement
and its adopting Decision 1/CP.21.
59
Decision 1/CP.21, n. 2 above, at paragraph 51.
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M.J. MACE AND RODA VERHEYEN RECIEL 25 (2) 2016

were never discussed at a sufficient level of detail to
establish a clear and common understanding of their
parameters, or to what these terms precisely refer in
the context of Article 8 and/or the WIM. Whose liabil-
ity –States or private entities? For what impacts? Over
what time frame? Compensation in what form? For
what wrongful act precisely? Moreover, the words ‘in-
volve’and ‘provide a basis for’are quite vague, produc-
ing a predictable lack of clarity on the scope and
purpose of this paragraph. What does ‘involve’mean
exactly? And in what sense does it ‘provide a basis
for’?
The phrase ‘loss and damage’does not necessarily con-
note legal liability or State responsibility for damage,
even if both loss and damage are terms that can be
understood in a legal context.
60
Liability as a legal notion
within the climate regime has been referred to primarily
in the context of Principle 13 of the Rio Declaration
(‘States shall cooperate in an expeditious and more
determined manner to develop further international law
regarding liability and compensation for adverse effects
of environmental damage caused by activities within
their jurisdiction or control to areas beyond their juris-
diction’),
61
in the 2008 AOSIS proposal
62
and in non-
governmental organizations’submissions.
63
Paragraph
51 does not preclude the ‘development’of anything.
Paragraph 51’s‘interpretation’is contained in the deci-
sion adopting the Paris Agreement, rather than in the
Agreement itself, which is significant. The legal status
of COP decisions is debated, but scholars agree that
they do not constitute binding rules under interna-
tional law.
64
Decisions do capture the parties’agree-
ment on an issue at the time they are taken,
65
though
such understandings are often superseded by later
understandings, subsequent decisions providing
greater detail, or decisions recasting earlier decisions.
The interpretation or assessment put forward in para-
graph 51 could at any point in time be replaced by
another decision of the COP or by a decision of the
CMA, as only Article 8 (and not paragraph 51) is part of
the treaty that is the Paris Agreement.
Furthermore, paragraph 51 of COP Decision 1/CP.21 is
intended to interpret Article 8 of the Paris Agreement.
Yet the Paris Agreement is itself a treaty distinct from
the UNFCCC, as understood under the Vienna Conven-
tion on the Law of the Treaties (VCLT),
66
though it is
part of the Convention’sbroader‘architecture’due to its
adoption by the UNFCCC parties and its many refer-
ences to the UNFCCC.
67
Strictly speaking, one may
argue that the interpretation provided in paragraph 51 is
misplaced –that it has been put forward by the wrong
set of parties and by the wrong body, that is, by the COP
rather than by the CMA. This may seem a somewhat for-
malistic argument and distinction, as all future parties
to the Paris Agreement will most likely also be party to
the Convention. But in the 2009 Compliance Committee
Enforcement Branch decision on Croatia, it rejected the
applicability of a decision taken under the Convention
with relation to Croatia’s base year emissions, when this
was raised in the context of the Kyoto Protocol.
68
Para-
graph 51 has not been adopted by the CMA. It also needs
to be taken into account that the Marrakech Accords
were negotiated by the COP, but had to be adopted by
the Conference of the Parties serving as the Meeting of
the Parties to the Kyoto Protocol before they were appli-
cable under the Kyoto Protocol.
It is worth taking a closer look at the two elements of
paragraph 51:
•Article 8 does not provide a basis for ‘any liability or
compensation’; and
•Article 8 does not involve ‘any liability or compensa-
tion’.
In an international law context, ‘compensation’would
normally refer to a legal consequence due to wrongful
behaviour.
69
Compensation is one way to make
60
R. Verheyen, ‘Tackling Loss & Damage –A New Role for the Climate
Regime?’ (2012), found at: <http://www.loss-and-damage.net/4805>.
61
Rio Declaration on Environment and Development, found in: Report
of the UN Conference on Environment and Development (UN Doc. A/
CONF.151/26/Rev.1 (Vol. I), 14 June 1992), Annex, Principle 13.
62
See 2008 AOSIS Proposal, n. 22 above.
63
See E. Kosolapova, Interstate Liability for Climate Change-Related
Damage (Eleven International, 2013), exploring the issue of inter-State
liability and basically deeming the approach unsuitable. There have been
calls for the payment of ‘climate debt’ over the years, but this concept has
related more to issues of equity in connection with mitigation effort and
‘access’ to the carbon budget, than support to address the impacts of cli-
mate change. See, e.g., ‘Draft Decision on Establishment of Non-market
Mechanism’ (2012), found at: <https://unfccc.int/files/bodies/application/
pdf/bolivia_17parties_lca1b5_040912.pdf>.
64
See n. 41 above; see also K. Ipsen, V€
olkerrecht (Beck, 2015), at
505; T. Gehring, ‘Treaty-Making and Treaty Evolution’, in: D. Bodan-
sky, J. Brunn
ee and E. Hey (eds.), The Oxford Handbook of Interna-
tional Environmental Law (Oxford University Press, 2007), 491.
65
See R. Verheyen, n. 9 above, at 252.
66
Vienna Convention on the Law of Treaties (Vienna, 23 May 1969; in
force 27 January 1980), Article 2.1(a) and (b). The Paris Agreement is
‘an international agreement concluded between States in written
form and governed by international law’ that requires ratification,
acceptance, approval or accession by State parties as an expression of
their consent to be bound. See, for an ex ante analysis, D. Bodansky
and L. Rajamani, ‘Key Legal Issues in the 2015 Climate Change
Negotiations’ (Center for Climate and Energy Solutions, 2015).
67
This term has been used ex ante by D. Bodansky and L. Rajamani,
n. 66 above.
68
UNFCCC, Enforcement Branch of the Compliance Committee, Final
Decision (UN Doc. CC-2009-1-8/Croatia/EB, 26 November 2009), at
paragraph 3(c): ‘The application of decision 7/CP.12 under the Kyoto
Protocol does not followfrom any of the provisions ofthe Kyoto Protocol
or from CMP decisions. Since the COP and the CMP are two distinct
decision-making bodies, the fact that all Parties to the Kyoto Protocol
are also Parties to the United Nations Framework Convention on Cli-
mate Change does not provide a sufficient basis for establishing the
application of COP decisions under the Kyoto Protocol.’
69
See Draft Articles on State Responsibility adopted by the Interna-
tional Law Commission (ILC), Report of the International Law Com-
mission on its 53rd Session (UN Doc. A/56/10, 2001).
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reparation or rehabilitation (through restitution, com-
pensation, satisfaction, see Article 34 of the Interna-
tional Law Commission’s Draft Articles on State
Responsibility) but clearly refers to monetary payments
to ‘make good’damage caused.
70
The term ‘liability’can
refer to civil liability (of private entities, such as under
the oil pollution fund regime) or State liability (i.e.,
strict responsibility).
With respect to the first statement above, this reference
is limited to Article 8 –stating that Article 8 does not
contain clear obligations that could ‘provide a basis for’
compensation should they not be fulfilled. However, the
obligations contained in Article 4 of the Paris Agree-
ment, for example, relating to nationally determined
contributions, could very well ‘provide a basis’for com-
pensation should they not be fulfilled, if parties fail to
bring forward or fail to meet sufficiently ambitious miti-
gation goals, consistent with the long-term temperature
goal set out in Article 2. Yet paragraph 51 does not refer
to Article 4 or to the Agreement as a whole.
An interpretation of Article 8 of the Agreement does not
and cannot impact any State activities prior to the entry
into force of the Paris Agreement. Nor can a COP deci-
sion alter or waive general rules of customary interna-
tional law. Public international law remedies remain
available and are unaffected by paragraph 51. This
seems to have been the consensus in the last days of the
Paris negotiations –even the proposal made by the US
with respect to this matter, which is captured in the 10
December version of the Agreement, contained the
clause ‘nor prejudice existing rights under international
law’.
71
Perhaps this last clause was dropped from the
final version as self-evident. Regardless, a number of
SIDS have already presented interpretive declarations
with their instruments of ratification (Marshall Islands,
Nauru, Tuvalu) to make this explicit.
72
Parties pressing for paragraph 51 may have wished to
avoid giving the impression that the WIM or activities
under Article 8 would be expected to evolve into a State
liability regime (e.g., the 1972 Space Object Conven-
tion
73
), a civil liability regime (e.g., the 1989 Basel
Hazardous Waste Convention
74
) or a regime like the
much-discussed oil spill regime, which has elements of
both.
75
However, the mandate of the WIM includes
seeking input on methods to remedy loss, ‘including
through recovery and rehabilitation’, as this has been
agreed as an action area in the WIM’s work plan.
76
Thus, overall, paragraph 51 clarifies very little. It does
not preclude the WIM or the parties to the Paris Agree-
ment from agreeing over time to a legal regime which
might resemble a liability scheme or which may provide
some kind of monetary payout or financial support in
case of actual damage –whether or not the terms liabil-
ity and compensation are used. Even an international
system of ‘cooperation and facilitation’established
under the climate change umbrella could and may wish
to employ tools used by liability regimes or interna-
tional or domestic solidarity schemes to address trans-
boundary impacts.
77
However, explicitly noting that Article 8 itself does not
address the issues of compensation and liability –at
least in the near term –may allow for the development
of a system at the international level that can address
these same issues in a less confrontational manner,
engaging States and even revenues from non-State
actors in financing solutions.
In addition to not prejudicing existing rights, one can
equally ask whether the Paris Agreement establishes
any additional obligations with respect to loss and dam-
age, or whether it merely reflects elements already
agreed or initiated through earlier COP decisions. The
Paris Agreement outcomes on loss and damage can cer-
tainly be seen as a reflection of ongoing work on loss
and damage under the WIM, and the provisions of
Article 8.4 certainly also resonate with work underway
on adaptation in other Convention bodies. But at the
70
Ibid.
71
UNFCCC, Draft Paris Outcome, Proposal by the President (10
December 2015), found at: <http://unfccc.int/resource/docs/
2015/cop21/eng/da02.pdf>, at Article 5, Option 2, paragraph 3: ‘Par-
ties shall enhance action and support, on a cooperative and facilitative
basis, for addressing loss and damage associated with the adverse
effects of climate change, and in a manner that does not involve or
provide a basis for liability or compensation nor prejudice existing
rights under international law.’
72
See, e.g., Declaration made by Nauru: ‘Nauru, declares its under-
standing that the ratification of the Agreement shall in no way consti-
tute a renunciation of any rights under international law concerning
State responsibility [for] the adverse effects of climate change.
FURTHER, the Government of Nauru declares that no provisions in
the Agreement can be interpreted as derogating from the principles of
general international law. AND FURTHER, the Government of Nauru
declares its understanding that Article 8 and decision 1/CP.21,
paragraph 51 in no way limits the ability of Parties to UNFCCC or the
Agreement to raise, discuss, or address any present or future
concerns regarding the issues of liability and compensation....’ Text
of declarations can be found at: <https://treaties.un.org/pages/View-
Details.aspx?src=TREATY&mtdsg_no=XXVII-7-d&chapter=27&-
lang=en#EndDec>.
73
1972 Convention on International Liability for Damage Caused by
Space Objects (New York, 29 November 1971; in force 1 September
1972).
74
Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and their Disposal (Basel, 21 March 1989; in force
4 May 1992).
75
On the oil spill regime and other legal regimes, see J. Linnerooth-
Bayer et al., n. 6 above, at 29–38 (international legal responses to risk
and approaches to insurance).
76
Decision 2/CP.20, n. 38 above, at paragraph 1, citing: UNFCCC,
Report of the Executive Committee of the Warsaw International Mech-
anism for Loss and Damage Associated with Climate Change Impacts
(UN Doc. FCCC/SB/2014/4, 24 October 2014), Annex II: ‘Action area
5: Enhance the understanding of the capacity and coordination needs
with regard to preparing for, responding to and building resilience
against loss and damage associated with extreme and slow onset
events, including through recovery and rehabilitation.’
77
For example, risk-layering and risk-sharing pools.
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M.J. MACE AND RODA VERHEYEN RECIEL 25 (2) 2016

same time, Article 8 now gives a home to issues around
loss and damage. The Paris Agreement therefore rein-
forces the fact that climate change policy and regulation
is now three-pronged (mitigation, adaptation, and
managing loss and damage).
RELATIONSHIP BETWEEN THE
CMA AND THE COP AFTER PARIS
The WIM will remain exclusively subject to decisions of
the COP until the entry into force of the Paris Agree-
ment. Once the Paris Agreement enters into force, how-
ever, matters may become more complicated.
The WIM was originally established by a decision of the
COP. The WIM ExCom is currently accountable to the
COP and reports to the COP through the SBI and
SBSTA.
78
However, Article 8.2 of the Paris Agreement
provides that the WIM
shall be subject to the authority and guidance of the Confer-
ence of the Parties serving as the meeting of the Parties to
the Paris Agreement and may be enhanced and strength-
ened, as determined by the Conference of the Parties serving
as the meeting of the Parties to the Paris Agreement.
79
This raises the question of the future relationship
between the COP and the CMA concerning WIM-
related matters.
Upon entry into force, the WIM will essentially become a
mechanism to serve both the UNFCCC and Paris Agree-
ment. There are other existing bodies that will also serve
both treaties. These include the entities entrusted with
the operation of the Financial Mechanism (the Green Cli-
mate Fund and the Global Environment Facility), the
Special Climate Change Fund, the Least Developed Coun-
tries Fund and the Standing Committee on Finance.
80
The Secretariat, SBSTA and SBI serve the entire climate
regime and will serve the Paris Agreement under Articles
17 and 18. The Adaptation Fund ‘may’serve the Paris
Agreement if parties to both the Paris Agreement and
Kyoto Protocol agree.
81
The Technology Mechanism
‘shall’serve the Agreement under Article 10.3.
But the parties to the Paris Agreement have decided
that the WIM ‘shall be subject to the authority and guid-
ance of the CMA’. Any guidance and direction from the
CMA that is directed to the WIM may take precedence,
due to the nature of the Paris Agreement (legally bind-
ing treaty) as opposed to COP decisions (internally
binding, soft law). There is also a clear intention to
allow for the development and strengthening of the
WIM by the CMA under Article 8.2 (the WIM ‘may be
enhanced and strengthened, as determined by the
[CMA]’). Legally, the WIM can be seen to be on the
same level as the ‘mechanism to contribute to the miti-
gation of greenhouse gas emissions and support sus-
tainable development’established under Article 6.4 of
the Agreement and the ‘mechanism to facilitate imple-
mentation and promote compliance’established under
Article 15, which will take direction from the parties to
the Paris Agreement.
Many open questions remain. Can both the COP and
the CMA give guidance to the WIM? Do both bodies
need to agree on guidance? Which body signs off on
work plan activities –the COP, the CMA or both? What
happens to members of the WIM ExCom that are not
parties to the Paris Agreement? Might they need to
recuse themselves in certain situations? How will the
WIM report to the CMA? What are the practical impli-
cations of different approaches? Will the COP and CMA
continue to convene on the same cycles? What if they
do not? These are important questions, because the
answers may impact the ability of the parties to take the
work of the WIM forward through layers of decision-
making processes.
THE LINK TO FINANCE AFTER
PARIS
The Paris Agreement does not include a clear link to
financial support for activities related to loss and
damage under the WIM, though Article 9 does state
that ‘[d]eveloped countries shall provide financial
resources to assist developing countries with respect to
both mitigation and adaptation in continuation of their
existing obligations under the Convention’.
82
Much debate has taken place among the parties to the
UNFCCC over the extent to which adaptation and gen-
eral risk reduction activities are distinct from or can be
differentiated from activities to ‘address loss and dam-
age’. This has essentially been a debate about the cover-
age of the UNFCCC itself. Some developed countries
saw, or wished to see, loss and damage as beyond its
scope. The Convention, some argued, addressed mitiga-
tion and adaptation, and not the ‘consequences of fail-
ure to act’, meaning damage due to climate change.
Some now take the view that adaptation and loss and
damage are indistinguishable, as any risk reduction
measure could both be categorized as ‘adaptation’and
as a measure ‘addressing loss and damage’(e.g., by
reducing loss).
83
Others take the view that impacts will
78
Decision 1/CP.21, n. 2 above, at paragraph 50; Decision 2/CP.19,
n. 33 above, at paragraph 3.
79
Paris Agreement, n. 1 above, Article 8.2.
80
Decision 1/CP.21, n. 2 above, at paragraphs 58 and 63.
81
Ibid., at paragraph 57.
82
Paris Agreement, n. 1 above, Article 9 (emphasis added).
83
Compare, however, the series of UNEP Adaptation Gap Reports,
which clearly distinguish ‘residual damages’ from adaptation. See
<http://web.unep.org/adaptationgapreport/content/adaptation-gap-
reports>.
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exceed that which can or will be addressed by adapta-
tion efforts and resources, and it is the role of the cli-
mate change regime to address these impacts.
Through Decision 2/CP.19, the parties acknowledged
that ‘loss and damage associated with the adverse
effects of climate change includes, and in some cases
involves more than, that which can be reduced by adap-
tation’.
84
While this can be understood in different
ways, it does suggest that parties view loss and damage
as not as fully equivalent to adaptation, or completely
distinct from adaptation, but as an overlapping and
interrelated issue, with boundaries that may not be fully
defined. This understanding is an important one in the
context of financial, capacity building and technical
support.
If ‘loss and damage’were considered to be subsumed
under ‘adaptation’, drawing from the structure of the
Canc
un Agreements and the Bali Action Plan, it could
be argued as a legal matter that all activities under the
WIM qualify for support under Convention Article 4.4
and existing adaptation funding. Decision 2/CP.19 was
taken under the Canc
un Adaptation Framework
85
and
Article 9 of the Paris Agreement requires developed
countries to provide financial resources to assist devel-
oping countries with respect to both mitigation and
adaptation, in continuation of their existing obliga-
tions under the Convention. The challenge, however,
is that even assuming existing adaptation funding
were sufficient to address adaptation needs, adapta-
tion alone cannot address many climate change
impacts.
86
It is simply not possible to ‘facilitate
adequate adaptation’.
Studies have begun to distinguish risks that can be
reduced through adaptation from ‘residual risk’fol-
lowing adaptation and mitigation. The Fifth Assess-
ment Report (AR5) of the Intergovernmental
Panel on Climate Change (IPCC) refers to ‘risks’, the
potential for reducing ‘risks’through adaptation and
mitigation, and ‘residual risks’.
87
Studies increasingly
emphasize that adaptation and mitigation efforts
reduce future loss and damage, but will not eliminate
loss and damage for many regions and sectors.
88
Studies have also begun to disaggregate the cost of
cost-effective adaptation from the cost of ‘residual
damage’remaining after adaptation, finding, for
example, that even if all cost-effective adaptation is
realized, Africa will still suffer ‘residual’damages esti-
mated at double the level of adaptation costs in the
period 2030–2050.
89
This will become an issue in the climate regime over
time, not least because Article 4.4 of the Convention
obliges developed country parties to assist particularly
vulnerable developing countries in meeting the costs
of adaption, but also because Article 8.3 of the Paris
Agreement now refers to ‘support’for measures to
address loss and damage. Article 8.1 recognizes ‘the
importance of averting, minimizing and addressing
loss and damage associated with the adverse effects
of climate change’
90
and the notion of financially
addressing loss and damage is captured in the term
‘addressing’. Article 8.3 builds on this by emphasizing
that ‘action and support’should be strengthened with
respect to loss and damage and this strengthening
should happen ‘through’the WIM, as well as through
party action. While this language is not nearly as
clear as Article 4.4 of the UNFCCC (‘shall assist’)it
represents a clear recognition of the link between
loss and damage and support under the Financial
Mechanism.
Bodansky has qualified Article 8 language as an expec-
tation or recognition rather than a legal obligation,
91
but the term ‘support’is generally understood to refer
to all sorts of support, including financial support, and
Article 8.3 must be taken in the context of what is
now a clearly established mechanism –the WIM.
Decision 2/CP.19, paragraph 5(c)(ii) includes the man-
date for the WIM to ‘provid[e] information and rec-
ommendations for consideration by the [COP] when
providing guidance relevant to reducing the risks of
loss and damage and, where necessary, addressing
loss and damage, including to the operating entities
of the financial mechanism of the Convention’,
92
which now include both the Global Environment Facil-
ity and the Green Climate Fund.
93
The WIM is also
mandated to:
84
Decision 2/CP.19, n. 33 above, at preambular paragraph 4.
85
Ibid., at paragraph 1, referring to Decision 1/CP.16, n. 27 above,
Section II (‘Enhanced Action on Adaptation’).
86
UNEP, Adaptation Finance Gap Report 2016 (UNEP, 2016), at xii
and 40–42, noting that the AR5 reported global estimates of the costs
of adaptation in developing countries at between US$70 billion and
US$100 billion per year between 2010 and 2050; later studies suggest
that by 2030 the costs of adaptation are likely to be two to three times
higher than the range cited in the AR5, and potentially four to five times
higher by 2050, reaching US$280–500 billion per year. Developed
countries have agreed to mobilize US$100 billion per year to address
both mitigation and adaptation. See Decision 1/CP.21, n. 2 above, at
paragraphs 53 and 114.
87
IPCC, ‘Summary for Policymakers’, in: C.B. Field et al. (eds.), Cli-
mate Change 2014: Impacts, Adaptation, and Vulnerability. Part A:
Global and Sectoral Aspects. Contribution of Working Group II to the
Fifth Assessment Report of the Intergovernmental Panel on Climate
Change (Cambridge University Press, 2014), 1, at Box SPM.2,
Table 1.
88
Ibid.; see also the discussion in UNEP, Africa’s Adaptation Gap 2
(UNEP, 2015), at 8–9.
89
See UNEP, n. 88 above.
90
Paris Agreement, n. 1 above, Article 8.1.
91
See D. Bodansky, n. 57 above.
92
Decision 2/CP.19, n. 33 above, at paragraph 5(c)(ii) (emphasis
added).
93
Decision 1/CP.16, n. 27 above, established a Green Climate Fund
as an operating entity of the Financial Mechanism of the Convention
under Article 11; see also Decision 1/CP.21, n. 2 above, at paragraph
58.
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M.J. MACE AND RODA VERHEYEN RECIEL 25 (2) 2016

Facilitat[e] the mobilization and securing of expertise, and
enhancement of support, including finance, technology
and capacity-building, to strengthen existing approaches
and, where necessary, facilitate the development and imple-
mentation of additional approaches to address loss and
damage associated with climate change impacts, including
extreme weather events and slow onset events.
94
Thus, Article 8.3’s reference to ‘action and support’
reinforces the link between loss and damage and sup-
port under the Financial Mechanism. While it would
have been desirable to include a clear link to financial
support for the WIM itself and for activities under
the WIM in the Paris Agreement, this express link
was not politically possible in Paris. It remains to be
seen what kind of financial support will be needed
and what kind of existing or additional funding win-
dow can be accessed or will be established. It seems
that developed countries are open to addressing some
elements of loss and damage already, as evidenced by
clear commitments towards financing insurance
components.
95
INSURANCE-RELATED ISSUES
AFTER PARIS
The term ‘insurance’hasbeenusedinabroadsenseby
AOSIS over the years –somewhat euphemistically –to
describe a desired system that would provide compensa-
tion for loss and damage suffered by particularly vulnera-
ble developing country parties.
96
Thisbeganbackin1991
with the proposed AOSIS ‘Insurance Annex’, with a fund-
ing system modelled on a liability and compensation
scheme. Since then, vulnerable parties have looked for
‘insurance-related approaches’to address both slow onset
events and extreme weather events, made more frequent
or severe through anthropogenic climate change, that are
designed to recognize and address the additional burden
and cost vulnerable parties face in responding to the
impacts of human-induced climate change. AOSIS, for
example, has expressed interest in ‘risk sharing’,‘risk
transfer’and ‘risk pooling’–insurance-related notions
that it has indicated should be understood to include an
element of international support (‘risk sharing’between
developed and developing countries), a shifting of the
financial burden of impacts (‘risk transfer’), from
impacted countries to those contributing most directly to
this impact, and systems in which contributions are made
to an international or regional financial pool and
disbursed to parties in need (‘risk pooling’).
97
It is under-
standable that developed countries are eager to under-
stand these same terms as elements of traditional
insurance that can support adaptation at the national or
sub-national level, while particularly vulnerable develop-
ing countries, in contrast, see these phrases as referring
to international financial support to manage and address
risk and impacts, and technical support to design innova-
tive ‘insurance-related’tools that can redistribute risk,
transfer risk and share the cost of impacts between devel-
oped and developing countries. AOSIS has expressed
support also for non-traditional ‘insurance’tools and
risk-layering and risk-sharing approaches.
98
Prior to the
establishment of the WIM, insurance workshops, adapta-
tion ‘pillars’and agenda items, of necessity, provided the
available spaces to raise these political issues. AOSIS’s
2008 proposal sought international financial support for
all elements of the ‘Multi-Window Mechanism’under an
adaptation heading, but at the same time acknowledged
that the mechanism as a whole would address loss and
damage not avoided by adaptation through a compen-
satory component.
99
Article 8.4 now provides a list of illustrative ‘areas of
cooperation and facilitation’in which work to ‘enhance
understanding, action and support’may be undertaken.
These include: (i) early warning systems; (ii) emergency
preparedness; (iii) slow onset events; (iv) events that
may involve irreversible and permanent loss and dam-
age; (v) comprehensive risk assessment and manage-
ment; (vi) risk insurance facilities, climate risk pooling
and other insurance solutions; (vii) non-economic
losses; and (viii) resilience of communities, livelihoods
and ecosystems.
100
94
Decision 2/CP.19, n. 33 above, at paragraph 5(c)(iii).
95
See D. Jergler, ‘How Will Paris Agreement Change the Insurance
Industry?’ (17 March 2016), found at: <http://www.insurancejournal.
com/news/national/2016/03/17/402322.htm>.
96
See the discussion at the beginning of this article; and 2007 AOSIS
Dialogue Working Paper, n. 16 above; 2008 AOSIS Proposal, n. 22
above.
97
See 2007 AOSIS Dialogue Working Paper, n. 16 above, at 6–9;
2008 AOSIS Proposal, n. 22 above, at 29–30 (e.g., referring to an
‘internationally-supported’ mechanism and ‘lifting the burden of cli-
mate risk’ on vulnerable parties); and at 30–31 (citing proposed
‘Scheme C’, a ‘climate change risk management mechanism’ put for-
ward in a UNFCCC Secretariat Technical Paper on ‘Mechanisms to
Manage Financial Risks from Direct Impacts of Climate Change in
Developing Countries’, and appreciating its long-term approach at the
global level that recognizes that support is needed from the interna-
tional community where underlying risks may be uninsurable due to
the high degree of hazard or the inability of the parties at risk to pay an
adequate premium). See also UNFCCC, ‘Mechanisms to Manage
Financial Risks’, n. 20 above, at 78–82 (Scheme C).
98
For further discussion, see UNFCCC, ‘Mechanisms to Manage
Financial Risks’, n. 20 above, at 4–10 (executive summary); at 69–82
(proposing potential financial solutions for developing countries
through Schemes A, B and C); and 98–104 (recognizing the benefits
and challenges of insurance and ‘non-insurance’ mechanisms, and
the need for the development of creative approaches).
99
2008 AOSIS Proposal, n. 22 above, at 20 (addressing financing for
all elements of the proposed mechanism).
100
Some of these items can also be found in previous COP decisions
and financial guidance related to adaptation, sometimes couched in
different terminology. See, e.g., Decision 5/CP.7, n. 10 above, at para-
graph 7(b)(vii), referring to early warning systems; and Decision
1/CP.10, n. 14 above. See also, for instance, the work under the Nair-
obi Work Programme, the Adaptation Committee and the Least Devel-
oped Countries Expert Group, using terminology such as ‘costs of
inaction’ and ‘longer-term impacts’.
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In the near term, Decision 1/CP.21 requests the WIM
ExCom ‘to establish a clearing house for risk transfer
that serves as a repository for information on insur-
ance and risk transfer, in order to facilitate the efforts
of Parties to develop and implement comprehensive
risk management strategies’.
101
This language was pro-
posed –in the form of decision text –by developed
countries, in response to farther-reaching treaty text
for the Paris Agreement proposed by developing coun-
tries.
102
It does not respond to the long-standing
request from developing countries for a technical advi-
sory body as part of a mechanism on loss and damage,
capable of providing advice and support for the devel-
opment and funding of innovative insurance-related
tools to address the particular needs of particularly
vulnerable countries. Nor does it respond to the speci-
fic request of the LDC Group for a clearing house, as
part of the Paris Agreement itself, with a broader
function relating to financial support for rehabilita-
tion.
103
Following Paris, it is left ambiguous whether
the mere existence of a clearing house is expected to
facilitate national efforts or whether the WIM will
work to facilitate the development of comprehensive
risk management strategies at the international level
for parties that will be particularly hard hit by the
impacts of climate change –for example, those facing
existential threats.
Nevertheless, Article 8.4’s listing of areas in which ‘co-
operation and facilitation’to enhance ‘action and sup-
port’may be undertaken leaves the future role of
‘insurance-related’instruments and tools, broadly
understood, wide open. For example, ‘risk insurance
facilities, climate risk pooling and other insurance solu-
tions’, could, if creatively structured through work com-
missioned by the WIM, and financed through
international support, be used to fashion an interna-
tional response to loss and damage associated with
extreme and slow onset events and address ‘recovery
and rehabilitation’needs, linking action areas 5 (re-
silience, recovery and rehabilitation) and 7 (financial
instruments and tools).
104
DISPLACEMENT
Similarly, paragraphs 49 and 50 of Decision 1/CP.21
request the WIM ExCom ‘to establish ... a task
force ... to develop recommendations for integrated
approaches to avert, minimize and address displace-
ment related to the adverse impacts of climate
change’and to report back on its progress in its
annual report.
105
This paragraph works substantively
within the mandate of Article 8.4(c)–(e) of the
Agreement. The reference to ‘displacement’in the
Paris outcome responds to the request by develop-
ing countries for attention to this issue, but without
necessarily establishing the facility under the Agree-
ment or under the WIM as requested by developing
countries, though this future possibility exists. As
with paragraph 48, paragraph 49 also resonates
with work already underway through the WIM’s
two-year work plan, including under existing action
area 6 (migration, displacement and human
mobility).
However, addressing displacement methodically over
the long term, is certainly an area of work in which
‘supporting parties’will not be sufficient and an
international framework will have to be developed
by the WIM or the parties to the UNFCCC and Paris
Agreement.
106
WHAT ROLE FOR THE WIM GOING
FORWARD?
So what then is the role of the WIM in the wake of the
Paris outcome? The key elements vulnerable countries
have sought over the years are referenced in previous
parts of this article.
Developing countries have sought a ‘mechanism’that
would be permanent, have independence, provide tech-
nical and financial support in minimizing loss and dam-
age and help devise approaches and technical and
financial tools to address the loss and damage experi-
enced by the most vulnerable. Few of these aspirations
have been realized in the WIM’s operation or structure
thus far. Nevertheless, the WIM’s mandate, headings
and ‘action areas’in effect could enable what was
proposed initially in the AOSIS-Multi-Window
Mechanism –over time.
First, the mandate of the WIM is broad enough to
encompass many of the concerns addressed by what
has been termed ‘compensation’. Decision 3/CP.18 lists
as a ‘further work area’‘approaches to rehabilitate from
loss and damage associated with the adverse effects of
climate change’.
107
Action area 5 also contains a link to
101
Decision 1/CP.21, n. 2 above, at paragraph 48.
102
UNFCCC, ADP-2 –Working Document (4 September 2015), found
at: <https://unfccc.int/files/bodies/application/pdf/adp2-10_4sep20
15t0145_wd.pdf>,at6.
103
See Geneva Negotiating Text, n. 49 above, option III, at paragraph
78: ‘The purpose of the clearing house for risk transfer shall be to:
a. Provide a repository for information on insurance and risk transfer;
b. Assist Parties in developing risk management strategies and finding
best insurance schemes; c. Facilitate financial support for rehabilita-
tion.’
104
Paris Agreement, n. 1 above, Article 8.4(f) refers to ‘risk insurance
facilities, climate risk pooling and other insurance solutions’.
105
Decision 1/CP.21, n. 2 above, at paragraph 49.
106
See generally B. Mayer, ‘Migration in the UNFCCC Workstream
on Loss and Damage: An Assessment of Alternative Framings and
Conceivable Responses’, 5 Transnational Environmental Law (2016,
forthcoming).
107
Decision 3/CP.18, n. 32 above, at paragraph 7.
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M.J. MACE AND RODA VERHEYEN RECIEL 25 (2) 2016

what might be termed compensation, in its reference to
building resilience through ‘recovery and rehabilita-
tion’; this could eventually lead to a type of ‘Rehabilita-
tion Component’, as proposed by AOSIS in 2008.
This is noteworthy, particularly in the context of
Decision 1/CP.21, paragraph 51.
Second, the WIM has room to address insurance-
related issues in connection with action area 7 on ‘fi-
nancial instruments and tools’and other action areas.
The ExCom has put out a call for written submissions
with respect to ‘best practices, challenges and lessons
learned from existing financial instruments at all
levels that address the risk of loss and damage associ-
ated with the adverse effects of climate change’,
including ‘those financial instruments in the context of
social protection, risk reduction, preparedness,
response and recovery, and those more broadly related
to building resilience against loss and damage associ-
ated with extreme and slow onset events’.
108
The issue
of financial instruments next will be taken up at a
forum organized by the Standing Committee on
Finance in early September 2016 and a link to the
Financial Mechanism could be developed to provide
technical and financial support. Over time, this work
area could lead to an insurance component, as called
for by AOSIS.
Third, there is ample room for the WIM to do fur-
ther work on risk assessment and risk management,
also as sought by AOSIS and other developing coun-
tries, by developing methodologies and gathering the
latest information on projected impacts at different
levels of global warming, in different regional and
national contexts, to enhance knowledge and under-
standing and inform the development of appropriate
approaches to address loss and damage. The penulti-
mate section of this article addresses recent develop-
ments in attribution science that should become part
of the body of knowledge used by the WIM to
inform parties on the timing and scale and nature of
the impacts that can be anticipated at various levels
of warming.
109
In response to the original call by the ExCom for inputs
to the WIM’s initial two-year work plan,
110
AOSIS put
forward both a long-term strategic vision for the WIM
and a set of supporting activities.
111
These remain
equally relevant today. The LDC Group also presented a
series of long-term needs and specific activities that
could begin to address these needs. The African Group
and the Group of 77 provided reinforcing messages.
112
These submissions should be revisited and embraced
in the development of the WIM’s anticipated five-year
rolling work plan, in recognition of the serious
concerns facing many of these vulnerable countries,
which are only becoming more pressing over
time.
SIGNIFICANCE OF THE 1.5 °C
TEMPERATURE LIMIT IN THE
CONTEXT OF LOSS AND DAMAGE
Under Article 8.1 of the Paris Agreement, the ‘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’.
In this context, an extremely significant outcome of the
ParisCOPwasthedecisiontakenbytheCOPto
strengthen the ‘below 2 °C’long-term goal adopted in
Canc
un. This followed consideration of the adequacy of
this long-term goal in view of its impacts, under the
2013–2015 review process established under Decision
1/CP.16.
113
The new goal is adopted in Decision 10/CP.21,
paragraph 4, and reflected in Article 2 of the Paris Agree-
ment, under which parties adopt a goal of: ‘Holding the
increase in the global average temperature to well below
2°Cabove pre-industrial levels and pursuing efforts
to limit the temperature increase to 1.5 °Cabove pre-
industrial levels, recognizing that this would signifi-
cantly reduce the risks and impacts of climate
change.’
114
Together, Articles 2 and 4 provide the primary obliga-
tion of the Paris Agreement and set the pace and
direction for mitigation action: peaking as soon as
possible, rapid reductions thereafter, net zero emis-
sions in the second half of the century, in pursuit of a
limit in global average surface temperature increase to
1.5 °C above pre-industrial levels.
115
The Agreement
requires each party to present a successive nationally
determined contribution every five years that will
represent a progression beyond the party’s then
current contribution, and reflect its ‘highest possible
ambition’.
116
108
See <https://unfccc.int/adaptation/groups_committees/loss_and_-
damage_executive_committee/items/9404txt.php>.
109
This is information that parties have sought through the WIM. See
n. 44 above.
110
Ibid.
111
Ibid. See <http://unfccc.int/files/adaptation/cancun_adaptation_
framework/loss_and_damage/application/pdf/aosis_input.pdf>.
112
See n. 44 above.
113
UNFCCC, Decision 1/CP.16, n. 27 above, at paragraphs 4 and
138–140.
114
See UNFCCC, Decision 10/CP.21, The 2013–2015 Review (UN
Doc. FCCC/CP/2015/10/Add.2, 29 January 2016); Paris Agreement,
n. 1 above, Article 2 (emphasis added).
115
See M.J. Mace, ‘Mitigation Commitments under the Paris Agree-
ment and the Way Forward’, 6:1–2Climate Law (2016), 21.
116
Paris Agreement, n. 1 above, Article 4.3.
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By putting in place a strengthened global goal, and
moving from a ‘below 2 °C’to a ‘well below 2 °C’and
1.5 °C limit, the Paris outcome provides support to
initiatives like the Urgenda Foundation’s case against
the Dutch government, which urged greater national
mitigation ambition in light of the significance of
each party’s emissions in contributing to climate
impacts, as well as support to the series of atmo-
spheric trust cases brought by Our Children’s Trust
and others, emphasizing the obligation of governmen-
tal bodies to safeguard their populations and the
atmosphere for future generations.
117
These cases are
based on predictions of damage, both national and
global.
Arguably, a failure to aggressively pursue an emis-
sions pathway consistent with a 1.5 °C limit in tem-
perature increases could now provide a basis for
compensation and liability, since this goal forms part
of the primary obligations accepted by parties upon
ratification. Many parties’intended nationally deter-
mined contributions were presented prior to Paris in
the context of a 2 °C goal and fell short of the ambi-
tion required; Decision 1/CP.21 requests that parties
communicate new and updated nationally determined
contributions by 2020.
118
Studies have already begun
to detail the substantially greater risks and impacts at
2°C of warming compared to those at 1.5 °C;
119
par-
ties are on notice of these enhanced risks and
impacts following the results of the 2013–2015
review; and all parties have already recognized
through Decision 10/CP.21 that pursuing the 1.5 °C
limit ‘would significantly reduce the risks and impacts
of climate change’.
HISTORICAL RESPONSIBILITY FOR
IMPACTS AND DEVELOPMENTS IN
ATTRIBUTION SCIENCE
In the months since Paris, the causal link between par-
ticular emissions and particular impacts has come into
even sharper focus. At the April 2016 European Geo-
sciences Union General Assembly, research results were
presented identifying the relative historical contribu-
tions of individual State parties to the increase in tem-
perature in 2100 resulting from cumulative greenhouse
gas emissions through 2012, based on the Brazilian Pro-
posal.
120
According to this work, emissions through
2012, even if immediately cut thereafter, would still
result in 1 °C warming by 2100, with responsibility for
this warming found to be as follows: US (20%), China
(12%), EU-28 (17%), Russia (6%), India (5%), Brazil
(4%), rest of the World (34%).
121
The contribution of individual fossil fuel and cement
producers to historical cumulative emissions has been
detailed in a 2014 study by Richard Heede, addressing
carbon dioxide and methane produced between 1751
and 2010.
122
The following top the list: Chevron
(3.52%), ExxonMobil (3.22%), Saudi Aramco (3.17%),
BP (2.47%), Gazprom (2.22%).
An expert on glaciers has found that if global warming
stopped today, glaciers would continue to melt, losing
30% of their current mass and contributing 100
millimetres to sea-level rise, just in response to past
emissions –loss to which we are committed, but that
has just not yet been realized.
123
Actions have conse-
quences and we now know better than ever how to
quantify these consequences and link them back to
emissions and even emitters.
A 2012 study has disaggregated sea-level rise due to cli-
mate change, climate variability and ground motion at
various islands in the Pacific, finding that some have
117
See Urgenda Foundation and 886 Citizens v. the State of The
Netherlands, [2015] C/09/456689/HA ZA 13-1396, in which the court
ruled there was a sufficient causal link between Dutch emissions and
climate impacts, and in which the Dutch government was ordered to
reduce emissions by at least 25% from 1990 levels by 2020, rather
than the 17% planned); see also Foster et al. v. Washington State
Department of Ecology, Case No. 14-2-25295-1 SEA (15 Nov. 2015),
in which Washington state was told it has a mandatory duty to pre-
serve, protect, enhance air quality for current and future generations.
118
Decision 1/CP.21, n. 2 above, at paragraphs 16–18 (noting aggre-
gate effect of intended nationally determined contributions) and 23–24
(requesting new and updated communications). An IPCC Special
Report on 1.5 degree pathways and impacts is due in 2018, to inform
parties’ new and updated nationally determined contributions. See
ibid., at paragraph 21. See also n. 53 above.
119
See C.F. Schleussner et al., ‘Differential Climate Impacts for
Policy-Relevant Limits to Global Warming: The Case of 1.5 °C and 2
°C’, 7 Earth System Dynamics (2016), 327; UNFCCC, Report of the
Structured Expert Dialogue on the 2013–2015 Review (UN Doc.
FCCC/SB/2015/INF.1, 4 May 2015), Annex III, at paragraph 35 (for
highly temperature-sensitive systems, such as the polar regions, high
mountains and the tropics, the difference in projected risks between a
warming of 1.5 °C and 2 °C is significant); ibid., Annex III, at paragraph
48 (to protect at least 50% of warm water coral reefs, global mean
temperature change would have to be limited to 1.1–1.4 °C, without
taking into account the effects of ocean acidification); IPCC, n. 87
above, SPM.1, Figure 1 and SPM.2, Table 1.
120
A proposed approach for distributing the burden of emission reduc-
tions based on the effect of their cumulative historical emissions (since
1840) on the global average surface air temperature. See <http://unfc-
cc.int/methods/other_methodological_issues/items/2955.php>.
121
M. Krapp, ‘Historical Responsibilities and Climate Impacts of the
Paris Agreement’, presentation at the European Geosciences Union
Press Conference (21 April 2016). Conference webstream at:
<http://client.cntv.at/egu2016/press-conference-8>; see also M.
Krapp et al., ‘Historical Responsibility for Climate Change –From
Countries Emissions to Contribution to Temperature Increase’, 18
Geophysical Research Abstracts (2016), EGU2016-17982.
122
R. Heede, ‘Tracing Anthropogenic Carbon Dioxide and Methane
Emissions to Fossil Fuel and Cement Producers, 1854–2010’, 122 Cli-
matic Change (2014), 229; see also P. Frumhoff, R. Heede and N.
Oreskes, ‘The Climate Responsibilities of Industrial Carbon Produc-
ers’, 132 Climatic Change (2015), 157.
123
European Geosciences Union General Assembly (21 April 2016),
Presentation of B. Marzeion, ‘Glacier Mass Change Projections and
Commitments Resulting from the Paris Agreement’. Conference web-
stream at: <http://client.cntv.at/egu2016/press-conference-8>.
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M.J. MACE AND RODA VERHEYEN RECIEL 25 (2) 2016

suffered an acceleration of sea-level rise well beyond
the global average.
124
A 2016 study has shown that cli-
mate change has enhanced El Ni~
no-related sea-level
extremes, especially in the tropical Pacific, creating a
seesaw effect that exacerbates the coastal impacts of
sea-level rise.
125
Work is underway on the impacts of
sea-level rise and storm-induced inundation on the sus-
tainability of atoll nations in the Pacific, the time frame
for tipping points and the ‘potential for geopolitical con-
sequences caused by the need to possibly relocate atoll
island-states throughout the Pacific and Indian
Oceans’.
126
There has also been rapid progress in ‘event attribution
science’in the last few years, which seeks to determine
to what extent anthropogenic climate change has
altered the probability or magnitude of particular dam-
aging extreme weather and climate-related events.
127
A
2016 study on coastal flooding in the US, for example,
found a greater than 95% probability that more than
half of observed flood days over the last decade would
not have occurred without the human contribution to
global sea level.
128
Another recent study looked at pre-
cipitation extremes worldwide, finding that at current
warming of 0.85 °C, about 18% of moderate daily pre-
cipitation extremes over land are attributable to the
observed temperature increase since pre-industrial
times; at 2 °C, this share would rise to about 40%.
129
These and other recent studies draw an increasingly
close link between emissions and particular impacts, in
ways that should increasingly make emitters and policy
makers take note. Based on these kinds of studies, for
example, a Peruvian homeowner, faced with a severe
glacial outburst flood, has taken legal action against
RWE, a major German coal utility, aiming to make the
emitter take action to reduce the flood risk.
130
As a result, whether a formal process labelled ‘compen-
sation and liability’is eventually established under the
WIM, the UNFCCC or the Paris Agreement, or
approaches to address permanent and irreversible loss
and damage develop under another label within the cli-
mate regime, the issue of responsibility remains and
cannot be ignored in view of the equities involved.
131
It
will remain the elephant in the room for future climate
negotiations, despite the interpretive clause analysed
above.
These scientific developments should in any event give
momentum and direction to the work of the WIM,
because against this backdrop, it should in theory be
more advantageous to address the permanent loss and
damage experienced by particularly vulnerable parties
through a collaborative process under the climate
change regime, than through a contentious process
outside the regime –provided that such a process can
deliver what vulnerable countries have sought in calling
for an international mechanism to address loss and
damage.
132
This is in fact the role of liability and com-
pensation regimes: to lend predictability to how the
impacts of transboundary pollution will be addressed
for the benefit of all parties.
CONCLUSION
After the Paris COP, all options remain open for
addressing loss and damage under the Convention and
Paris Agreement. Loss and damage has received the
profile sought by vulnerable developing countries in
the Paris Agreement. The WIM has been ‘anchored’in
the Paris Agreement. Initiatives have begun on risk
transfer tools and on a set of ‘areas of cooperation and
facilitation’have been set out, re-emphasizing WIM
areas of work. It has been declared that the WIM may
be ‘strengthened and enhanced’by the CMA, and the
WIM’s own ‘functions’, in any event, were never a
closed set.
There is now a need for the WIM to play an active role
in helping policy makers better quantify the impacts
and scale of loss and damage that is experienced and
projected from human-induced climate change in dif-
ferent regions and in different national contexts, over
different time frames and at different emission
124
M. Becker et al., ‘Sea Level Variations at Tropical Pacific Islands
since 1950’, 80–81 Global and Planetary Change (2012), 85.
125
M.J. Widlansky, A. Timmermann and W. Cai, ‘Future Extreme Sea
Level Seesaws in the Tropical Pacific’, 1:8 Science Advances (2015),
e1500560.
126
See <https://serdp-estcp.org/Program-Areas/Resource-Conser-
vation-and-Climate-Change/Climate-Change/Vulnerability-and-Impa-
ct-Assessment/RC-2334>. These research projects focus on the
Republic of the Marshall Islands –where the US has a number of mili-
tary installations –but have broad application to other Pacific atolls.
These studies are looking at the timing, frequency and spatial impact
of sea-level rise and storm-wave inundation in the future, and tipping
points under which infrastructure and freshwater supplies may be
threatened. See also <http://walrus.wr.usgs.gov/climate-change/
atolls/news.html>; C.D. Storlazzi, E.P.L. Elias and P. Berkowitz,
‘Many Atolls May Be Uninhabitable within Decades Due to Climate
Change’, 5 Scientific Reports (2015), 14546.
127
P.A. Stott et al., ‘Attribution of Extreme Weather and Climate-
Related Events’, 7 WIREs Climate Change (2016), 23.
128
See, e.g., B.H. Strauss et al.,Unnatural Coastal Floods: Sea Level
Rise and the Human Fingerprint on U.S. Floods Since 1950 (Climate
Central, 2016), at 1–16.
129
E.M. Fischer and R. Knutti, ‘Anthropogenic Contribution to Global
Occurrence of Heavy-Precipitation and High Temperature Extremes’,
5:6 Nature Climate Change (2015), 560. Further event attribution stud-
ies have shown that human influences on climate have changed the
risk of a wider class of extreme events. See S.C. Herring et al. (eds.),
Explaining Extreme Events of 2014 from a Climate Perspective, 96:12
Bulletin of the American Meteorological Society (2015), S1.
130
See J. Schwartz, ‘In Novel Tactic on Climate Change, Citizens
Sue their Governments’, New York Times (10 May 2016); and
<https://germanwatch.org/en/huaraz>.
131
See generally R. Lefeber, An Inconvenient Responsibility (Eleven,
2009).
132
See n. 44 above.
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pathways, sharing developments in event attribution
science, and working with technical experts and policy
makers to design and tailor approaches to address loss
and damage that are suited to assisting the most
vulnerable.
Systems can be put into place under the WIM in the
nature of ‘cooperation and facilitation’without present
fear of compensation and liability, recognizing the exist-
ing commitments of developed countries under the
Convention to support mitigation and adaptation and
to enhance support to address loss and damage. With
respect to displacement, the WIM and the appointed
task force could draw out approaches which will
overlap with issues of refugee law, expropriation and
re-settlement methodologies. This is inevitable work
which cannot be done by parties individually. There will
also be a need for technical and academic support,
which is evident from the informal interdisciplinary
network of scientists on loss and damage that is gradu-
ally emerging. Legal questions will continue to arise as
well. In sum, regardless of the ‘willingness’of parties to
engage, the issue of climate damage will remain
squarely on the political agenda.
M.J. Mace is a lawyer and independent consultant. She
previously headed the Climate Change and Energy Pro-
gramme at the Foundation for International Environmen-
tal Law and Development (FIELD) in London, and was a
Senior Teaching Fellow at the SOAS–University of London
School of Law, where she taught Climate Change Law and
Policy. She has participated in the climate change negoti-
ations on AOSIS delegations for over 15 years, first as a
representative of the Federated States of Micronesia
National Government, and in recent years as a Legal
Advisor to the Saint Lucia delegation.
Dr Roda Verheyen wrote her PhD on climate change dam-
age in international law and co-founded the Climate Jus-
tice Programme in 2002. She now works in private
practice at a law firm specializing in environmental and
planning law in Hamburg, Germany. She is a board mem-
ber of the Hamburg International Environmental Law
Conference (HIELC), and regularly publishes on interna-
tional and national environmental law. She has previously
been an independent consultant for a number of non-
governmental organizations and governmental bodies, as
well as a member of the German delegation to the
UNFCCC.
The authors would like to thank Harro van Asselt for his
exceptional support and extremely valuable comments on
earlier drafts, as well as an anonymous reviewer for very
constructive comments. The views expressed in this article
are solely those of the authors and should not be attribu-
ted to any governmental body.
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