Blog post by Steven Miron, Refugee Law Initiative
The 28th annual Conference of Parties (COP 28) of the United Nations Framework Convention on Climate Change (UNFCCC) recently concluded in Dubai to mixed reviews. In many respects, the outcomes of COP 28 were disconcerting, with potentially grave consequences for developing nations and frontline communities disproportionately impacted by climate change and the Earth’s ecosystems. However, COP 28 did, arguably, deliver some positive outcomes, including around loss and damage and displacement.
This blog post looks at two important developments at COP 28 – the creation and scope of the new Loss and Damage Fund and the operationalization of the Santiago Network on Loss and Damage (SNLD). It also poses the question of whether, following decisions taken at COP 28, we might have the makings of a gap-filling and potentially robust UNFCCC architecture to address displacement and other human mobilities in the context of climate change.
This short piece also provides relevant background on loss and damage and displacement for readers who might not have followed COP 28 closely or might be unfamiliar with the UNFCCC and its evolution over the past three-plus decades. It starts with a brief and, by necessity, incomplete overview of some of the outcomes related to mitigation, adaptation and loss and damage, which have been referred to as the “three pillars of climate action” within the UNFCCC.
The UNFCCC describes climate change mitigation as the process of reducing greenhouse gas emissions and creating “sinks” to prevent carbon from entering the atmosphere and contributing to global heating.
The final overarching agreement at COP 28, the First Global Stocktake (GST), has been referred to as ‘historic’ by many, given that, for the first time in three decades, there is now formal acknowledgment by all 197 State parties to the Convention that humanity must begin “transitioning away from fossil fuels in energy systems, in a just, orderly and equitable manner, accelerating action in this critical decade, so as to achieve net zero by 2050 in keeping with the science” (Paragraph 28(d)). This fell short of the demands of over one hundred nations, who called for the “phase out” of fossil fuels That wording was blocked by Saudi Arabia and several other oil-rich States, an outcome which many scientists consider “devastating” and a “tragedy for our planet”. The final consensus agreement and related COP 28 agreements have also been criticized for not providing sufficient finance to support just energy transitions for developing nations.
Startlingly, the Global Stocktake was ratified in the absence of the delegates of the 39 nations that comprise the Association of Small Island States (AOSIS), some of the most climate-vulnerable countries in the world. The delegates had gathered briefly outside the plenary hall to discuss their response to the proposed consensus agreement just before the vote, but the vote proceeded without them. Just after the vote, to a standing ovation captured at the end of this dramatic video clip, the representative of Samoa, Anne Rasmussen, poignantly “called out” the agreement. Referring to it as “a litany of loopholes”, she observed, “We have made an incremental advancement over business as usual when what we really needed is an exponential step change in our actions…It is not enough for us to reference the science and then make agreements that ignore what the science is telling us we need to do.”
Adaptation refers to intentional adjustments to ecological, social or economic systems to reduce the impacts of climate change. Climate adaptation became a central pillar of climate change action, governance, and finance under the UNFCCC at COP 16 in Cancún (2010), which established the Cancun Adaptation Framework and the Green Climate Fund (GCF) and set a target of mobilizing $100 billion in annual climate adaptation and mitigation finance to developing nations by 2020.
Climate adaptation funding to assist climate adaptation within climate-vulnerable nations and communities has lagged the commitments previously made by developed nations, thereby contributing to an alarming ‘adaptation gap’, made worse by continued emissions and increases in global average temperatures. Adaptation within the First Global Stocktake, according to the International Institute for Sustainable Development’s (IISD) Anne Hammill, is “unacceptably weak”, not reflecting the “urgent need of ramping up adaptation and support”. Consultations at COP 28 did advance a process known as the New Collective Quantified Goal on Climate Finance (NCQG), aimed at garnering greater climate finance support for developing nations. The scope and thematic focus of NCQG will be determined at COP 29 in Azerbaijan in late 2024 and, hopefully, will also include ambitious funding goals for the Loss and Damage Fund, which, at present, isn’t part of the NCQG process.
Loss and Damage
Loss and damage refers to the adverse impacts of climate change, economic and non-economic, that occur despite – or in the absence of – preventative efforts such as climate change adaptation and disaster risk reduction. Loss and damage occurs when mitigation and adaptation fail or are inadequate. Significant loss and damage has already happened. It is distributed unequally, with disproportional impacts on small island developing states (SIDS), least developed countries (LDCs) and developing nations, and will increase substantially as global average temperatures continue to rise. Displacement can result from loss and damage. Displacement can, itself, be considered a form of loss and damage. Displacement can also lead to cascading loss and damages for those affected.
After years of acrimonious debates, State parties agreed at COP 27 in 2022 to establish a Loss and Damage Fund and Funding Arrangements to assist developing nations in addressing climate change loss and damage. A Transitional Committee was subsequently formed to develop a set of recommendations for COP 28 on Fund scope, governance, contributions and eligibility.
In 2023, ongoing advocacy efforts around climate-related loss and damage, including for the inclusion of displacement in the scope of a future Loss and Damage Fund, reached a crescendo. Advocacy work included expert briefings, dialogues with decision makers, and numerous formal written submissions to the Loss and Damage Transitional Committee. This author was fortunate to work on one such effort, the Loss and Damage and Displacement: Key Messages for the Road to COP 28. That advocacy brief was developed by a broad coalition of practitioners, researchers, lawyers and activists working on human mobility, known as the Loss and Damage and Challenges of Human Mobility and Displacement Working Group, and co-published by Researching Internal Displacement and the Loss and Damage Collaboration. Though some of the messages in the publication were explicitly targeted at negotiations related to COP, the core messages on ‘loss and damage and displacement’ have broader and, unfortunately, enduring relevance. Advocacy work on loss and damage continued up to and through COP 28. Inside and outside COP 28 negotiation rooms, the laser-like focus on human mobility and loss and damage carried on. There were countless workshops and other events, often held within the Human Mobility Pavilion and live-streamed.
To the surprise of many, the Loss and Damage Transitional Committee’s recommendations were ratified by UNFCCC State parties on Opening Day of COP 28, meaning that the Loss and Damage Fund has now been operationalized, at least on paper. “Loss and Damage” was also included as a sub-section of the First Global Stocktake agreement, alongside “Mitigation” and “Adaptation”, hopefully enshrining loss and damage as an area of climate governance under the UNFCCC. Many people who advocated for loss and damage funding, some for decades, were thrilled with the significant advances around loss and damage at COP 28 – but also found their victory bittersweet.
On the positive side, the loss and damage agreement included “safe and dignified mobility” as one of the central components of the Fund’s scope, covering “displacement”, “relocation” and “migration”. It also called for a small grant funding provision to directly support and empower communities experiencing loss and damage, though the details have yet to be worked out. Funding pledges began to roll in immediately after the Fund was established, with approximately $700 million already pledged – a tiny fraction of the funding requirements, as discussed below.
Yet amidst a general sense of accomplishment over the Fund’s establishment, many of its tireless advocates, particularly those from developing nations experiencing the worst effects of climate change, were justifiably upset. Most of the intended references to human rights were kept out of the final text, mainly at the insistence of the US and other major polluter nations. These same wealthy States also insisted on language stating that contributions would be entirely voluntary, sidestepping any suggestion of polluter liability or responsibility. The final text also excluded what has become customary but important references to “common but differentiated responsibilities and respective capabilities” (CBDR), a well-established guiding principle of the 1992 UNFCCC agreement that runs through the Cancun Agreements (COP 16, 2010) and Paris Agreement (COP 21, 2015). CBDR holds that developed nations, whose economies have benefitted disproportionately from the extraction and burning of fossil fuels, have additional responsibilities to reduce greenhouse gas emissions and assist developing nations in addressing the adverse impact of climate change. However, in statements made ‘on the record’, several developing nations have declared that because the Loss and Damage Fund operates within the UNFCCC, the principle of CBDR extends to the Fund.
Additionally, developed nations, and particularly the US, insisted that the Fund be hosted by the World Bank, an institution that many developing nations find objectionable given the World Bank’s involvement in financing fossil fuel development and various other extractive undertakings, its role in contributing to national indebtedness in the Global South, and the US’s outsized influence over the World Bank. This was another bitter pill for developing nation advocates and their allies, who see “loss and damage” as a program of “liability and compensation” for harm caused by wealthy, polluting nations, not a charity administered by “patron nations” in the Global North.
Discussions on long-term, ongoing funding sources for the Loss and Damage Fund will occur between now and COP 29 in late 2024, hopefully as a formal part of the New Collective Quantified Goal on Climate Finance (NCQG), described above. Alternative (i.e., non-State) funding sources might be explored, too. Some have suggested developing additional sources through taxes on polluting industries or levies on air travel, fossil fuel extraction, and bunker fuel, a highly polluting fuel used by many marine vessels. However, even if funding negotiations go well, the sums raised would likely fall significantly short of actual climate change loss and damage incurred by developing nations. Some have argued for an initial annual funding floor of $400 billion based on estimates of actual loss and damage. Past experiences with adaptation and mitigation finance, however, suggest that loss and damage funding will likely lag current and future needs, particularly if global average temperatures exceed the 1.5°C incremental global warming limit set in the Paris Agreement, thus driving further loss and damage.
So, to ask some obviously rhetorical questions, will the loss and damage mechanism fully address actual loss and damage? It appears not. Will sufficient funding be found and channelled to priority areas to improve the well-being of the most affected communities, including those displaced? And might the establishment of loss and damage as the “third pillar” of climate action bring other benefits to countries and communities most impacted by climate change? Maybe.
The Santiago Network on Loss and Damage (SNLD)
The Warsaw International Mechanism for Loss and Damage (WIM) was established at COP 19 (2013) in Warsaw to promote “implementation of approaches to address loss and damage associated with the adverse effects of climate change” through enhancing knowledge, dialogue, support, and capacity building to address loss and damage associated with climate change. Subsequently, the Paris Agreement mandated the WIM Executive Committee to establish the Taskforce on Displacement (TFD) “to develop recommendations for integrated approaches to avert, minimize and address displacement related to the adverse impacts of climate change”.
At COP 26 in Glasgow (2021), State parties agreed to establish the Santiago Network on Loss and Damage (SNLD) as part of the Warsaw International Mechanism for Loss and Damage (WIM) to provide technical assistance to support developing countries in averting, minimizing, and addressing loss and damage caused by climate change. SNLD is mandated to facilitate access to knowledge, resources, and technical assistance to address climate risks comprehensively. Importantly, this includes connecting and catalyzing collaboration amongst developing nations and a diverse range of relevant organizations, bodies, networks and experts (Decision 2/CMA.2, Paragraph 43).
However, SNLD wasn’t fully operational until COP 28, when it was decided that SNLD would be co-hosted by the United Nations Office for Disaster Risk Reduction (UNDRR) and the UN Office for Project Services (UNOPS). UNDRR, which oversees the Sendai Framework for Disaster Risk Reduction 2015-2030, already works closely with many States, regional bodies and other stakeholders to develop disaster risk reduction (DRR) goals and disaster risk management (DRM) strategies and policies, addressing both climatic and non-climatic hazards and risks. The Sendai Framework and UNDRR’s mandate extend to disaster displacement.
An Emerging Architecture to Address Displacement?
Despite the disappointments at COP 28 described above, the creation of the Loss and Damage Fund and the operationalization of the SNLD potentially represent important steps toward creating a more robust mechanism within the UNFCCC for addressing displacement and human mobilities in the context of climate change.
On the one hand, we already have the Warsaw International Mechanism and its subsidiary Taskforce on Displacement, which provide policy leadership and ‘good practice’ guidance on displacement in the context of loss and damage. Additionally, we now have the Loss and Damage Fund, which has been mandated to address displacement, relocation and migration, and the SNLD to provide technical support through a coordinated network of stakeholder organizations, bodies, networks and experts. This network already includes partnerships with a diverse range of regional, international and intergovernmental organizations and will undoubtedly expand post-COP 28. Finally, with UNDRR as one of the co-hosts of the SNLD, climate change loss and damage efforts should be brought into alignment with DRR efforts. Displacement and other human mobilities in the context of climate change might finally be emerging from its shadow status, no longer an unfunded and under-supported mandate within the UNFCCC.
For a very long time, experts have advocated for the mainstreaming of climate-related displacement and other forms of human mobility into policy and practice through, for instance, the integration of climate-related displacement into national adaptation plans (NAPs) and disaster risk management (DRM) strategies. Some have called for the field of disaster risk reduction (DRR) to play a more central role in addressing climate-related vulnerability by encompassing adaptation and socioeconomic development. As a result of agreements made at COP 28, might we be seeing the early beginnings of a less-siloed, more integrated and better-funded approach to addressing climate-related displacement and other mobilities?
There are other unanswered questions. Will displacement be prioritized within a UNFCCC loss and damage mechanism? Going forward, will developing nations prioritize climate-related mobility in their National Adaptation Plans more than at present? Will we see greater political will and commitment to finding lasting solutions for people displaced in the context of climate change? Importantly, what kind of global warming backdrop will this all play out against – one that stays within or at least near the 1.5°C limit set in the Paris Agreement, or one that continues its current trajectory and greatly exceeds that limit? And, given the brazen refusal by some countries in the Global North to allow human rights and climate justice language into the Loss and Damage Fund agreement, can the Fund still be rights-based and justice-oriented in its approaches to loss and damage and human mobility?
The last question is perhaps the easiest to answer. If the Loss and Damage Fund is to live up to its promise, it must.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.