A Short History of the Loss and Damage Principle
Krishnee Appadoo

To cite this version:
Krishnee Appadoo. A Short History of the Loss and Damage Principle. Revue juridique de l’Océan
Indien, 2021, Justice climatique : perspectives des îles de l’océan Indien, 31, pp.315-323. �hal-03328974�

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A Short Historyof The Loss and Damage Principle

Krishnee APPADOO
Lecturer, Department of Law
Faculty of Law and Management, The University of Mauritius

There is now settled consensus that climate change is one of the mostdangerous dilemmas affecting humanity as well as other species and Earthsystems1. Climate change has been defined as a “long-term change in the average
weather patterns that have come to define Earth’s local, regional and global
climates”2. There have been a lot of research carried out on the ways that countries
are tackling with climate change from a mitigation and adaptation perspective.
However, beyond the limits of mitigation and adaptation, lie the principle of loss
and damage (L&D). L&D has, from a historical point of view, been a very
contentious issue to grapple with an added ambiguous definition3. L&D, in anutshell, has been defined as permanent loss or repairable damage caused by the
manifestations of climate change. This can include both severe weather events, aswell as slow-onset events, such as desertification and sea level rise. Moreover,L&D can also refer to economic and non-pecuniary harm, such as loss of life,
ecosystems, cultural heritage, and livelihoods, to name a few.
It is necessary, for our understanding of how L&D functions, to be able totrace the history, development, and evolution of the L&D concept.

1

Scientists attribute the global warming trend observed since the mid-20thcentury to the human
expansion of the “greenhouse effect”, warming that results when the atmosphere traps heatradiating from Earth toward space. Certain gases in the atmosphere, such as nitrous oxide,
methane and carbon dioxide (CO2, block heat from escaping. These gases are known as Green
House Gases (GHGs). It has been scientifically proven that humans have contributed to increase
atmospheric CO2 concentration by more than a third since the Industrial Revolution began.
2
NASA, “Overview: Weather, Global Warming and Climate Change”, Global Climate
Change, (2020), available online at https://climate.nasa.gov/resources/global-warming-vsclimate-change/, accessed on 10 January 2021.
3
A. DURAND, S. HUQ, “Defining Loss and Damage: Key Challenges and Considerations forDeveloping an Operational Definition”, International Centre for Climate Change andDevelopment, 2014.
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To achieve this, the article will adopt the following plan: part I will focus
on the historical background since the introduction of the climate change regime,
fitting L&D into the picture, with section A delving on a brief historical overview
of the international climate change regime, while section B will consist ofanalyzing the inception of the L&D principle. Part II will be made up of anassessment of how the L&D principle gained importance, relevance, andmomentum, with section A focused on the landmark milestone in the developmentof the principle, which is the instauration of the Warsaw International Mechanism(WIM), while section B will study the defining moment since the introduction of
the L&D principle, which is its inclusion in the Paris Agreement.

I. Background
The main cause of climate change, according to scientific observations andstudies, are fossil fuel burning, which leads to increases in heat-trapping
greenhouse gas (GHG) levels in the Earth’s atmosphere, which in turn raises theplanet’s average surface temperature. Therefore, it is undeniable that climatechange has stemmed mainly from anthropogenic activity, since the early 20 th
century, at the start of the industrial revolution which happened in global northcountries such as the UK, France, Germany, Canada, and the US. Indeed, in its
fifth assessment report, the Intergovernmental Panel on Climate Change (IPCC),
which is a team of 1, 300 independent scientific experts from countries across theglobe, under the authority of the United Nations (UN), conclusively reached theconclusion that there was more than 95% likelihood that human activities over the
past 50 years have contributed to the warming of the Earth4. The consequences ofclimate change can be underestimated. Ice caps are melting; sea levels are rising;oceans are becoming warmer; we are experiencing longer and more intense
droughts which in turn threaten wildlife, crops and freshwater supplies; and heatwaves, floods, storms, hurricanes and cyclones are become fiercer and more
frequent across the globe. These impacts, while also affecting developed nations,however disproportionately burden vulnerable countries, such as those located in
Africa and Asia, Small Island Developing States (SIDS), and Least Developed
Countries (LDCs), in terms of their economies, human rights, livelihoods, cultures
and ways of life. As a response to the above identified threats, a climate change
regime has been set up since the late 1950s, to empower vulnerable countries andtheir citizens to mitigate the effects of climate change and adapt to its severity.

‘AR5 Synthesis Report: Climate Change 2014’, IPCC,
https://www.ipcc.ch/report/ar5/syr/, accessed on 10 January 2021
4

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available

onlineat

A. A Brief Historical Overview of the International Climate Change
Regime
The timeline for the development and evolution of the internationalframework set up to provide an effective response to the scourge of climatechange is an interesting one. In painting the picture for the evolution of climatechange governance, policy, institutions, and law from an international
perspective, it is easy to identify five distinct periods. First and foremost, there is
the foundational phase (1957-1979), during which time the concept of climatechange springs up as an internationally recognized scientific dilemma5. Then
comes the agenda-setting period (1985-1990), a period where climate change asa concept transformed itself from a scientific conundrum into an important andcrucial policy issue6. The next tranche has been termed as the pre-negotiationinterval, a period spanning 1988 to 1990, during which time nation states aroundthe world became actively and purposefully involved in the climate change
process. Then came the actual negotiation phase, which was between 1990-1992,
during which the IPCC established itself as the “leading international expert bodyon climate change and the UNGA set up a negotiating committee to prepare thetext for the UNFCC”7. During this crucial stage of the evolution of international
climate change governance, the UNFCC, which was adopted in 1992, wascelebrated for being a landmark international agreement with tremendous
potential to respond effectively to climate change, especially in terms of global
CO2 emissions reduction. In its wake, there was what has been described as a postagreement phase, a time which was dedicated to the elaboration andimplementation of the UNFCCC, and formulation of negotiations on additional
commitments, leading ultimately to the adoption of the Kyoto Protocol in

5E.g. International Geophysical Year (1958), Keeling Curve [the Keeling Curve is a daily
record of global atmospheric carbon dioxide concentration maintained by Scripps Institution of
Oceanography at UC San Diego (1960), the establishment of the World Weather Watch
programme by the World Meteorological Organisation (WMO) in 1963, the launch of the
Global Atmospheric Research Programme by the International Council for Science in 1967, theUN Conference on the Human Environment (UNCHE) in 1972, the Report of the U.S. National
Academy of Sciences (1979), and the First World Climate Conference in 1979.
6
The latter stage of the 1980s witnessed climate change induced by human activity slowly
transform from a scientific into a political and public affair, as governments were quick toreassert control over this problem: this encouraged the setting up of the Intergovernmental Panelon Climate Change (IPCC), with a mandate to “provide internationally coordinated scientificassessments of the magnitude, timing and potential environmental and socio-economic impactsof climate change and realistic strategies” (UN General Assembly – 1988, art. 5).
7
J. KREIENKAMP, , “The Long Road to Paris: The History of the Global Climate Change
Regime”, Policy Brief, Global Governance Institute, University College London (UCL), 2019,
p.3
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December 19978. More recently, with the adoption of the Paris Agreement (PA)in 2015 as a new climate treaty, there has been the identification of a sixth stage
in the development of the global climate change regime. However, it isdisappointing to note that despite these metamorphoses in the international
climate change governance, the latter has been touted as being ineffective,
unresponsive, and not ambitious enough, with the latest example cited being the
UNFCCC’s 25th Conference of Parties (COP 25)9.
B. The Inception of the Loss and Damage Principle
As a direct response to the inadequacy of mere adaptation and mitigation
efforts, the concept of L&D has been introduced as early during the initialnegotiations of the UNFCCC. The idea of support for vulnerable countries whichbear a heavier brunt in terms of the effects of climate change, is nothing new, but
in recent years, “pressure to institutionalize a UNFCCC mechanism on L&D[increased] in response to the shortcomings of mitigation policy and theinadequacy of adaptation support for nations and communities alreadyexperiencing the worst effects of climate change”10.
The term L&D has been defined has the residual impacts of climate change
which mitigation and adaptation efforts are insufficient to prevent or alleviate.
L&D can be the consequence of severe weather events or slow onset events,
namely desertification or sea level rise. It was the Alliance of Small Island States(AOSIS) that first began championing the cause of L&D since the year 1991, in
the run up to the negotiations of setting up the UNFCCC11. At that time, AOSIS
lead the way in proposing the creation of an international insurance pool to assist
in offering compensation to the most vulnerable and low-lying coastal developing
countries, such as Mauritius, Seychelles, the Maldives, Samoa, Palau, etc., in
8

The Kyoto Protocol was adopted in the year 1997, and is an international agreement that was
aimed at managing and reducing states’ carbon emissions and GHGs. The Protocol had as
principal function the operationalization of the UNFCCC.
9
M. HOOD, “Five Reasons COP25 Climate Talks Failed”, (2019) Phys.org [online]. available
at https://phys.org/news/2019-12-cop25-climate.html, accessed on 10 Dec 2020;
A.
CHANDRASHEKAR,
The
Guardian,[online].,availableathttps://www.theguardian.com/commentisfree/2019/dec/21/un-climate-talks-deadlock-cop25,
accessed on 10 Dec 2020; A. VAUGHAM , ‘COP25 Climate Summit Ends in Staggering
Failureof
Leadership’.
[online].
16
December
2019.
Availableathttps://www.newscientist.com/article/2227541-cop25-climate-summit-ends-in-staggeringfailure-of-leadership/, accessed on 10 Dec 2020
10
A. DURAND, S. HUQ, Defining Loss and Damage: Key Challenges and Considerations forDeveloping an Operational Definition, International Centre for Climate Change andDevelopment, 2015.
11
Climate Analytics (2019), “Briefings on Loss and Damage”, available online athttps://climateanalytics.org/briefings/loss-and-damage/, accessed on 16 March 2021
R.J.O.I. 2021 – n° 31318

terms of loss and damage arising from sea level rise12. In the proposal submitted
by AOSIS, the contributed amount by each country to this fund would bedetermined by the latter’s corresponding role played to increase global CO2
emissions and their relative share of global gross national product (GNP): this wasa formula modelled on the 1963 Brussels Supplementary Convention on Third
Party Liability in the Field of Nuclear Energy13.
Subsequently, loss and damage was first referred to in a “formallynegotiated UN text in the 2007 Bali Action Plan, which called for “disaster
reduction strategies and means to address loss and damage associated withclimate change impacts in developing countries that are particularly vulnerable
to the adverse effects of climate change”14. Since then, the AOSIS haveconsistently called for a mechanism that would possess the ability andeffectiveness to compensate countries affected by sea level rise. The AOSIS
mechanism consisted of three elements, namely:– insurance;– rehabilitation and compensation;– and risk management.

II. Loss and Damage Gaining Traction
The Loss and Damage principle started gaining more traction in thefollowing years. At COP16, in 2010, a framework was developed for loss anddamage, under the Subsidiary Body on Implementation (SBI) Work Programme.
The SBI Work Programme had two aims, namely, to consider approaches toaddress loss and damage, including impacts of extreme weather events and slow
onset events in developing countries that are particularly vulnerable; and tostrengthen international cooperation and expertise in order to understand andreduce loss and damage15.
M. J. MACE, R. VERHEYEN, “Loss, Damage and Responsibility after COP21: All Options
Open for the Paris Agreement”, Review of International European Community andInternational Environmental Law 2016 (2)13The 1963 Convention Supplementary to the Paris Convention of 29 July 1960 (the "Brussels
Supplementary Convention" or BSC) was adopted to provide additional funds to compensate
damage as a result of a nuclear incident where Paris Convention funds proved to be insufficient.
14
F. D. W. BROT et al, “Climate Finance for Addressing Loss and Damage How to Mobilize
Support for Developing Countries to Tackle Loss and Damage” (2019).
15
UNFCCC(2010),“SBI
Work
Programme”,
available[online]https://unfccc.int/sites/default/files/resource/Online_guide_on_loss_and_damageMay_2018.pdf, accessed on 26 April 2021
12

R.J.O.I. 2021 – n° 31319For a while, people outside the UNFCCC negotiation process criticized theslow development of the L&D principle into hard law and genuine policy atinternational level: this was because L&D has emerged as a topic that issusceptible to misinformation and misinterpretation. It was unclear at that time
how L&D tied in with climate mitigation and adaptation and why it should nothave a relationship with compensation or liability, especially from the point ofview of the principle of common but differentiated responsibility underinternational environmental law. As such, the United Nations, as well as mostother developed nations have for a long time, rejected, in an unequivocal manner,
the argument that L&D should be conflated with liability or compensation.
It took increasingly robust evidence on climate change impacts and risks,
as synthesised by the IPCC (e.g. through the 5th Assessment Report in 2014), for
L&D to be recognised institutionally by the UNFCCC. A study of theContribution of Working Group II to the Fifth Assessment Report of theIntergovernmental Panel on Climate Change (IPCC WGII, AR5) used qualitative
data analysis software (text mining) to “assess which climatic stressors, impact
sectors and regions the report primarily associates with losses and damages, andcompared this with the focus areas of the Warsaw International Mechanism”16.
The study reveals that IPCC WGII AR5 primarily associates losses and damages
with extreme weather events and economic impacts, and treats it primarily as a
future risk. The SBI undertook technical work in the areas of assessing the risk ofloss and damage; a range of approaches; and the role of the UNFCCC.
A. Landmark Milestone for the Loss and Damage Principle
The landmark milestone for the loss and damage principle was undoubtedly in
2013, at COP19 in Warsaw, when there was the setting up of the Warsaw
International Mechanism for Loss and Damage (WIM). The Warsaw International
Mechanism for Loss and Damage (WIM) is the main vehicle in the UNFCCC
process to address loss and damage associated with climate change impacts indeveloping countries that are particularly vulnerable to the adverse effects ofclimate change, in a comprehensive, integrated and coherent manner. The
implementation of the functions of the WIM is guided by the Executive
Committee of the Mechanism. The three aims of the WIM are to enhanceknowledge and understanding of comprehensive risk management approaches; tostrengthen dialogue, coordination, coherence and synergies among relevant
stakeholders; and finally, to enhance action and support, including, finance,technology and capacity-building. The ExCom holds biannual meetings in orderto strategize implementation of the mechanism. At its sixth meeting (ExCom 6)
K. VAN DER GEEST, K. WARNER, “Loss and Damage in the IPCCC Fifth Assessment
Report (Working Group II): A Text-Mining Analysis”, Climate Policy 2020.
16

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320held from 11–13 October 2017, the five-year rolling work plan (succeeded by the
initial two-year work plan) was approved with recommendations, and progress
was acknowledged on the focus areas of the mechanism, such as on theclearinghouse for risk transfer, the work of the task force for displacement, andcommunication strategy17. The five-year rolling work plan was reviewed at
COP25. It is to be argued that the setting up of the WIM was a huge achievement
for climate negotiators, especially for the AOSIS, SIDS and other vulnerable
nations of the world, which are already bearing a disproportionate brunt of thisscourge. However, the WIM has been criticized on numerous fronts, especiallybecause of its slow development as a fully functional mechanism to monitor L&D.
For example, it has been debated whether the WIM should be removed from theadaptation framework of the UNFCCC18.
B. Inclusion of the Loss and Damage Principle in the Paris Agreement
At COP21, the principle of loss and damage was inserted into the muchcelebrated Paris Agreement, and it was a watershed moment, especially for
AOSIS, SIDS and other vulnerable and least-developed countries (LCDs) who
had been advocating for a robust loss and damage principle, recognized underinternational law. The loss and damage principle was thus enshrined in Article 8of the Paris Agreement. The Paris Agreement “recognizes the importance of
averting, minimizing and addressing loss and damage”19. The overarching areasof cooperation and facilitation to enhance understanding, action and support arein the following areas: Emergency preparedness; low onset events;
comprehensive risk assessment and management; risk insurance facilities, climate
risk pooling and other insurance solution; early warning systems’ events that may
involve irreversible and permanent loss and damage; non-economic losses; andresilience of communities, livelihoods and ecosystems20. While everyone
acknowledges that the inclusion of the L&D principle in the Paris Agreement is awatershed moment in the history of the development of the concept, there has
been some criticism levelled at Article 8 since then. For starters, both the Paris
Agreement and the WIM have not clarified the financing aspect of the L&D
principle. This has been due to the unwillingness of developed nations to put amonetary value on the concept. It is also partly because of lack of consensus on
the framing and definition of L&D, and also additionally on the big andcontentious question of who will be bearing the burden of finance (Global North
THE ENERGY AND RESOURCES INSTITUTE (2019), “Loss and Damage: The Gradual
Progression and the Road Ahead”, An Issue Brief, The Energy and Resources Institute, New
Delhi, India
18
G. TARASKA, “The Meaning of Loss and Damage in the International Climate
Negotiations”, Energy and Environment, Centre for American Progress, 2015.
19
Article 8 (1), Paris Agreement, Decision 1/CP.21
20
Article 8 (4), Paris Agreement, Decision 1/CP.21
17

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or developed nations). For example, in Article 8 of the PA, which is dedicated tothe principle of L&D, the closest and most obvious indications of finance are to
be found in Article 8 (3) and (4), which only mentions “support on a cooperativeand facilitative”21 basis, with nothing else supporting this statement. Indeed, whatis lacking is that there is no question of liability and compensation: these areplainly and outrightly excluded in the most non-equivocal terms by decision
1/CP.21 (para 49, 50). Additionally, it is disappointing that Article 9 mentions
finance but only refers to how this aspect should be balanced between adaptationand mitigation, with no mention whatsoever of L&D in this particular article, evenafter the ExCom of the WIM had previously entreated for the question of financeto be addressed at COP21 in Paris.

Conclusion: Loss and Damage in the Wake of the Paris
Agreement
After the adoption of the loss and damage principle in the Paris Agreement,
the notion was given an official and formal platform within the UN climate change
treaty regime. Researchers have however argued that “whereas Article 8 of theAgreement provided the bones for a loss and damage scheme there was still an
obvious need to put flesh to these bones”22. There have not been major
developments regarding the loss and damage principle since Paris: The five-year
rolling work plan of the WIM was reviewed at COP25, in 2019, and there wasalso slight mention of the loss and damage principle in the Paris Agreement Work
Programme.
As has been seen by the above article, L&D principle lacks effective
normative value, and is a “legal principle” devoid of legal force, unlike hard law
concepts, which are binding upon member States signatory to treaties andagreements under international law. The discourse around L&D has generated
significant confusion among practitioners and policy makers23, as it has been
21

Article 8 (3) and Article 8 (4), Paris Agreement, Decision 1/CP.21.
M. BROBERG, B. M. ROMERA, “Loss and Damage After Paris: More Bark than Bite”,
Climate Policy, Taylor and Francis, Vol. 20, n°6, 2020.
23
For example, E. A. PAGE and C. HEYWARD, “Compensating for Climate Change Loss
and Damage”, Political Studies, Vol. 65, n° (2), 2017, p. 357 argue that “the UNFCCC has yet
to adopt an account of climate change loss and damage that is sufficiently precise to identify
which changes in climate generates losses and damages, which agents should cover the costs
of interventions designed to address loss and damage or what ought to be the normative goal ofthese interventions.” Other authors which have commented on this confusion include E. BOYD
et al., “A Typology of Loss and Damage Perspectives”, Nature Climate Change, Vol. 7,
Springer Nature, p. 723 ; K. E. McNAMARA and G. JACKSON, “ Loss and Damage: A
Review of the Literature and Directions for Future Research”, WIREs Climate Change, n°1,
22

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argued that the operational details of the WIM, as well as Article 8 of the PA
which ought to give binding force to the principle, are not settled yet. Therefore
after studying the history and evolution, as well as the current framework for
L&D, there is scope to explore how the L&D principle can be effectively
implemented as a binding compensatory mechanism for Small Island Developing
States (SIDS) regarding residual climate impacts beyond mitigation andadaptation efforts.

2018 and G. VULTURIUS, M. DAVIS, “Defining Loss and Damage: The science and politics
around one of the most contested issue within the UNFCCC”, Discussion Brief, Stockholm
Environment Institute, 2016.
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