Today’s Sunday NYT featured a front-page story on COP19/CMP9, the first prominent coverage on the two-week meeting in Warsaw I’ve seen since we arrived last Sunday.  Leading with the well covered announcement by Naderev Sano, the Philippines negotiator, of his hunger strike  while negotiators work to move the climate change agreement to the next level, the Times story covered little of the specifics of this week’s hard work in the SBI, SBTSA, and ADP (covered thus far by our blog).  Instead it focused on how Typhoon Haiyan has shaped debate, stating that COP19 has “turned into an emotional forum, with developing countries demanding compensation from the worst polluting countries for damage they say they are already suffering.”

With all due respect to the Grey Lady, this is not “All the [COP19/CMP9] News That’s Fit to Print.”  Yes, external events have lent urgency to the COP conversation about climate change “loss and damage” (one that has been going on since Bali).  And yes, one way of categorizing loss and damage principles is under the advocacy rubric of CI or “climate injustice.”

But there’s more substance to this story.  Developing countries currently lack a legal remedy for damage from climate change impacts like extreme weather events (e.g. Typhoons Haiyen and Bopha and …).  UNFCCC Article 3, Principle 1’s “common but differentiated responsibilities” leads to that principle’s conclusion that “developed country Parties should take the lead in combating climate change and the adverse effects thereof” (and implicitly recognizes their historical responsibility for global warming due to GHG emissions from early industrialization). The IPCC’s most recent report from Working Group I’s global community of scientists shows near certainty on the link between GHG emissions and global warming and climate change impacts in general.  But when it comes to determining legal responsibility that flows from duty, breach, and damage (to use the language of U.S. tort law), few scientists would feel comfortable stating that CO2 polluting countries caused these typhoons.**   Consequently, these victims lack remedies in US and international courts – thus far.

Given this lack of legal remedy and the fact that typhoons struck the Philippines at the start of both COP19 and COP18 (Bopha), developing country negotiators in Warsaw are working overtime (literally:  the SBI and SBSTA closing sessions began at midnight 11/16 and I listened to their webcast’s until I drifted asleep at 3am 11/17) to create a new international mechanism that embodies the legal and moral concepts that some climate change impacts are irreversible and that the hardest hit countries must be compensated for them.

As Mr. Kioli, Chair of the Kenya CC Working Group, put it hopefully: “If developed countries are reasonable enough, they are able to understand that they have some responsibility.”  And the financial resources.  Mr. Ronald Jumeau, chief negotiator for the Seychelles, pointed out that the U.S. Congress allocated $60 billion alone for Hurricane Sandy recovery.  He then compared that amount to the $100 billion a year pledged (but not given) by developed countries to the Green Climate Fund.  Yet Todd Stern, U.S. Special Envoy on Climate Change, has stated in no uncertain terms that the U.S. will not be a main GCF contributor, given domestic priorities.

As was mentioned at a reception following an engaging day-long workshop on human rights and climate change sponsored by Yale University, UNITAR, and the University of Warsaw law faculty, Typhoon Haiyan has made the SBI agenda item on loss and damage a priority for COP19.  “We are at these climate conferences essentially moving chess figures across the board without ever being able to bring these negotiations to a conclusion,” Achim Steiner, executive director of the United Nations Environment Program opined to the Times yesterday.  That said, I’ll close with an excerpt from a letter to the politicians coming to Warsaw tomorrow to participate in the second week of COP19/CMP9. While it doesn’t attempt to checkmate all of international climate change law, it does seek to win the loss and damage point.

Whilst the UNFCCC has existing mechanisms and instruments on mitigation, adaptation, finance, technology and clean development, there is no specific mechanism to address loss and damage. Nor can loss and damage simply be subsumed under existing frameworks. It requires a dedicated international mechanism to advance the important work of tackling climate change impacts and compensate countries for the loss and damage they are increasingly sustaining.

Governments agreed at COP18 that the UNFCCC’s role on loss and damage includes enhancing knowledge and understanding; strengthening global coordination and coherence; and enhancing action and support to address loss and damage. More than 130 developing countries have now issued a joint proposal for an international mechanism. We the undersigned now urgently call on the Conference of the Parties to establish an international mechanism on loss and damage in Warsaw.

** UPDATE:  Today, the World Bank released a report at COP19 entitled Building Resilience:  Integrating Climate and Disaster Risk into Development.  Rachel Kyte, Vice President of Sustainable Development Newtowrk at the WB, spoke this evening at a side event launching the publication.  It reinforced this point on p. vii of its executive summary:

“Attributing causality of disasters to climate change remains intrinsically difficult due to the uncertainties, and complex and dynamic interactions between development patterns, the environment and the climate (all of which contribute to disaster risk).  While attribution of specific weather events to climate change is highly challenging, attributing disasters (the resulting impact) to a specific driver — climate, development or environmental change — is even more difficult, given the complexity of these interactions.”