1. european capacity building initiativeecbi Loss and Damage Legal and Scientific aspects Raj Bavishi (Legal Response Initiative) Professor Myles Allen (University of Oxford) 9 July 2012 european capacity building initiative initiative européenne de renforcement des capacités ecbi for sustained capacity building in support of international climate change negotiations pour un renforcement durable des capacités en appui aux négociations internationales sur les changements climatiques

2. european capacity building initiativeecbi Introduction  What is loss and damage?  Current status in the negotiations  Addressing loss and damage  Legal approaches  Issues of causation

3. european capacity building initiativeecbi What is loss and damage?  Adaptation or beyond adaptation?  Terminology important – sets conceptual parameters  Categories of damage  Avoidable loss and damage avoided  Sufficient mitigation and adaptation  Avoidable loss and damage not avoided  Insufficient mitigation and adaption  Unavoidable loss and damage  Regardless of future mitigation or adaptation measures

4. european capacity building initiativeecbi The UNFCCC negotiations  UNFCCC and Kyoto Protocol  Loss and damage not explicitly mentioned  Focus on mitigation  But chapeau to Article 4.8 – insurance  Calls for compensation for climate change damage are not new  Bangladesh (2005)  AOSIS (2007)

5. european capacity building initiativeecbi The Bali Action Plan (2007)  Decision 1/CP.13  Para 1(c)(ii) Consideration of risk management and risk reduction strategies, including risk sharing and transfer mechanism such as insurance  Para 1(c)(iii) Disaster reduction strategies and means to address loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to the adverse effects of climate change

6. european capacity building initiativeecbi Cancun – AWG-LCA (2010)  Decision 1/CP.16 Strengthen…expertise in order to understand and reduce loss and damage associated with to the adverse effects of climate change, including impacts related to extreme weather events and slow onset events (para 25) Establish a work programme in order to consider, including through workshops and expert meetings, as appropriate, approaches to address loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to the adverse effects of climate change (para 26)

7. european capacity building initiativeecbi Durban (2011)  Decision 7/CP.17 (Work programme on loss and damage)  Work programme split into three thematic areas  Assessing the risk of loss and damage  Approaches to address loss and damage  Expert meetings  Technical paper on slow onset events  Role of the Convention in enhancing implementation  Recommendation to be made to COP18

8. european capacity building initiativeecbi Work in 2012  First half of year - focus on risk assessment  Approaches to address loss and damage to be discussed in 4 expert meetings  First meeting:13-15 June – Addis Ababa, Ethiopia  Risk reduction  Risk retention  Risk transfer  Institutions and governance arrangements  Next meeting: 23-25 July – Mexico City, Mexico

9. european capacity building initiativeecbi Addressing loss and damage  Progress in negotiations is slow  International mechanism dealing with the various elements of addressing loss and damage is important  Current regulatory framework (international and domestic)  Restricted  Weak  Significant issues

10. european capacity building initiativeecbi Legal approaches  Negotiation – Build on Article 4.8 Convention  Litigation – tort based liability  Lack of consistency  International law – State Responsibility / ICJ opinion  Issues of lex specialis  Human rights – family life / right to property  Extraterritoriality  Compensation Fund – civil liability  Nuclear liability / liability for oil spills  Issue of causation

11. european capacity building initiativeecbi Issues of causation  Lorenz (1982): “Climate is what you expect, weather is what you get”  Updated for the 21st century: “Climate is what you affect, weather is what gets you”  Weather is directly observable, but unpredictable.  Climate is predictable, but not directly observable.

12. european capacity building initiativeecbi The 2011 Thai Floods "Global climate change has definitely contributed to the recent unprecedented flooding taking place in Thai south,” Thailand's deputy chief negotiator to the UNFCCC

13. european capacity building initiativeecbi The 2011 Thai Floods

14. european capacity building initiativeecbi The 2011 Thai Floods Rainfall not obviously related to global climate change (van Oldenborgh et al, 2012). Unprecedented damage due to unprecedented vulnerability?

15. european capacity building initiativeecbi The 2010 Russian Heatwave

16. european capacity building initiativeecbi The 2010 Russian Heatwave Not “impossible without warming” Odds have increased since 1960s, but the change is still a small contribution to the size of the event.

17. european capacity building initiativeecbi Outstanding issues of causation  Suppose human influence on climate increased the risk of a record-breaking heatwave by a factor of 4.  Should we attribute 75% of the harm caused by that heatwave to human influence on climate?  No – some of this harm would have been caused by a non-record-breaking heatwave.  So we need to extend hydrometeorological modelling to explicit impact modelling to compare probability distributions of actual damage: no-one has done this yet.

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