ToxicsWatch, Journal of Earth, Science, Economy and Justice

It notes the importance of ensuring the integrity of all ecosystems, including in forests, the ocean and the cryosphere, and the protection of biodiversity, recognized by some cultures as Mother Earth, and also noting the importance of ‘climate justice’, when taking action to address climate change. 

This draft decision has 100 paragraphs. It's paragraphs 44-48 deal with "Loss and Damage". It notes with grave concern, according to information in the contributions of Working Groups II and III to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC), the growing gravity, scope and frequency in all regions of loss and damage associated with the adverse effects of climate change, resulting in devastating economic and non-economic losses, including forced displacement and impacts on cultural heritage, human mobility and the lives and livelihoods of local communities, and underlines the importance of an adequate and effective response to loss and damage. 

In paragraph 45, it expresses deep concern regarding the significant financial costs associated with loss and damage for developing countries, resulting in a growing debt burden and impairing the realization of the Sustainable Development Goals. 

Paragraph 46 welcomes the consideration, for the first time, of matters relating to funding arrangements responding to loss and damage associated with the adverse effects of climate change, including a focus on addressing loss and damage, under the Conference of the Parties and the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement and also welcomes the adoption of decisions -/CP.27 and -/CMA.4, on matters relating to funding arrangements responding to loss and damage associated with the adverse effects of climate change. 

In para 47, it welcomes the adoption of decisions -/CP.27 and -/CMA.4, establishing the institutional arrangements of the Santiago network for averting, minimizing and addressing loss and damage associated with the adverse effects of climate change to enable its full operationalization, including supporting its mandated role in catalysing technical assistance for the implementation of the relevant approaches at the local, national and regional level in developing countries that are particularly vulnerable to the adverse effects of climate change, and affirms its determination to select the host of the secretariat of the Santiago network by 2023 through a selection process conducted in an open, transparent, fair and neutral manner in accordance with the process outlined in paragraphs 17-18 of decisions -/CMA.4 and -/CP.27. 

The paragraph 48 of the draft decision has been left blank to provide space "for funding arrangements decision". This reveals the outcome of COP-27. Unless this empty paragraph is filled with substantive content, COP-27 will be deemed a total failure. Some rich countries who are non-parties to several international environmental treaties and human rights treaties and who have been non-parties to Kyoto Protocol are resisting steps to meet the need for climate justice, equity and the principle of common but differentiated responsibilities and respective capabilities. These countries who either own nuclear weapons or host them have have no sense of morality. Besides their position on liability for past climate damages and losses, their stance with regard to UN treaty on nuclear disarmament and binding UN treaty for transnational corporations and other business enterprises establishes their adversarial relationship with Mother Earth and natural persons as a consequence of their total capture by artificial persons, the body corporates.    

It has to be read with the Report of the Executive Committee of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts published on 25 October 2022. The report is available at: https://unfccc.int/documents/609162

The Warsaw International Mechanism for Loss and Damage adopted at the 19th Conference of Parties (COP-19) to the United Nations Framework Convention on Climate Change (UNFCCC) in 2013 promotes the implementation of approaches to address loss and damage associated with climate change impacts. The mechanism is established under the UNFCCC to assist developing countries that are vulnerable to the adverse effects of climate crisis by enhancing knowledge and understanding of comprehensive risk management approaches to address loss and damage, strengthening dialogue, coordination, coherence and synergies among relevant stakeholders and enhancing action and support, including finance, technology and capacity-building. This is being done to implement Article 8 of the Paris Agreement adopted at COP 21 of the UNFCCC. 

The Executive Committee of the Warsaw International Mechanism guides the implementation of those functions through its work plan, and with the support of thematic expert groups. The current work plan has five strategic work streams, addressing loss and damage associated with climate change impacts. In compliance with its mandate the Executive Committee has developed initiatives, such as the Fiji Clearing House for Risk Transfer that connects experts and those looking for risk transfer solutions in order to build tailor-made responses.

The recent origin of "loss and damage" can be traced in the Report of COP-13 held in Bali, Indonesia in December 2007 published in March 2008 when Kyoto Protocol signed in 1997 at COP-3 was still in force. The report is available at: https://unfccc.int/resource/docs/2007/cop13/eng/06a01.pdf

The concept of "loss and damage" is essentially modeled on 1963 Brussels Supplementary Convention on Third Party Liability from Nuclear Energy, which could not be incorporated in the text of the UNFCCC in 1992 when it was adopted and signed was signed at the United Nations Conference on Environment and Development (UNCED), the Earth Summit n Rio de Janeiro. It entered into force in 1994. The COP-1 was held in Berlin in 1995. The journey of climate law from Berlin to Sharm-El Sheikh has been incomplete without the provision for liability of some 40 rich countries for the loss and damage caused by their "dangerous interference with the climate system". 

The text addressing loss and damage due to climate crisis is likely to be finalized before the conclusion of the COP-27 on 18 November. 

Gopal Krishna