THE Paris Agreement to the United Nations Framework Convention on Climate Change1 represents a significant, but not overwhelming step forward, in the context of adaptation to the impacts of climate change and actions to respond to these impacts. This policy paper tentatively explores how the international community has advanced its policy response to adaptation and loss and damage as a result of the agreement.

The outcomes from Paris on adaptation and loss and damage can be grouped into nine key themes. These include legally binding obligations on adaptation; responsibility for action; the politics of vulnerability; review mechanisms; funding arrangements; accountability; collaboration; the burden of reporting for developing countries; and new approaches to addressing climate change impacts: loss and damage. This paper will discuss each of these and explore how work under these themes will evolve as the Paris Agreement enters into force.

Finding the right wording to incorporate adaptation in the Paris Agreement was not easy. Adaptation is generally considered a country driven activity and it proved difficult to find obligations to fit within a legally binding agreement, other than ensuring that adaptation activities for the most vulnerable countries was properly funded. The Paris Agreement, through Article 7 creates a legal requirement for all parties to strengthen cooperation on adaptation (Article 7.7) and to engage in adaptation planning processes (Article 7.9). This is a significant step forward as it creates an obligation on all countries to take adaptation seriously.

During the negotiations there was considerable debate whether or not the agreement should include a goal for adaptation. African countries were keen to establish a quantitative goal as a means of ensuring that adaptation efforts were tested against a goal. This keen interest by African countries for an adaptation goal appeared to be driven by the 2014 UNEP Adaptation Gap Report which suggested that there were financial, technical and knowledge gaps that hindered the diffusion of appropriate adaptation technologies and know-how.2 Developed countries seem more reluctant to include a quantitative goal as it may give rise to expectations of greater financial support for adaptation. In the end, the agreement makes a qualitative goal of enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change (Article 7.1).

 

The Paris Agreement steered a new path in defining who was responsible for taking adaptation action and who was responsible for supporting this action. Previously the UN Framework Convention on Climate Change specified that it was the responsibility of the developed world to support developing countries that were particularly vulnerable in meeting the costs of adaptation (UNFCCC, Article 4.4). The Paris Agreement recognizes that adaptation is a global challenge and that all parties should strengthen their cooperation on enhancing action on adaptation (Article 7.7). This has shifted the traditional North-South divide towards a more collaborative approach to adaptation and has the potential to drive greater efforts in the context of South-South cooperation.

The agreement also encourages the United Nations specialized organizations and agencies to support the efforts of parties. While many UN agencies are already engaged in providing support for adaptation, eliciting their support through a legally binding instrument gives greater impetus and direction to their actions.

Perhaps one of the most divisive aspects of the adaptation negotiations (certainly at least within the G-77 and China) was the reference to who was the most vulnerable. As previously noted, Article 4.4 of the UN Framework Convention on Climate Change makes a generic reference to assisting the developing country parties that are particularly vulnerable, although the preamble to the convention identifies ‘low-lying and other small island countries, countries with low-lying coastal, arid and semi-arid areas or areas liable to floods, drought and desertification, and developing countries with fragile mountainous ecosystems’ as being particularly vulnerable to the adverse effects of climate change.

The Bali Action Plan that was agreed in 2007, further narrowed the definition of vulnerable countries. It identified that least developed countries and small island developing states were especially vulnerable to the impacts of climate change and took into account the needs of countries in Africa affected by drought, desertification and floods.3 It became apparent that certain countries felt they had been missed out in the definition of ‘especially vulnerable’ in the Bali Action Plan and did not want this repeated in the Paris Agreement. Various formulations were tried. As soon as one group was identified, another would make claim. At one stage the G-77 and China included in their list of vulnerable countries, ‘territories under occupation.’ In the end, the Paris Agreement returns to a generic reference to ‘particularly vulnerable to the adverse effects of climate change’ (Article 7.6). For small island developing states and least developed countries, this represented a significant step backwards in recognizing their particularly vulnerabilities. For others, it created a level playing field for everyone to be considered particularly vulnerable (if such a thing exists in the context of climate change vulnerability).

 

Perhaps one of the key set of elements for adaptation in the Paris Agreement are the review mechanisms. These mechanisms have two components. The first component is the transparency framework for action and support, established in Article 13. The purpose of the transparency framework is to provide a clear understanding of climate change action, including clarity and tracking of progress towards achieve each party’s adaptation actions (Article 13.5).

Critically the transparency framework can identify good practices, priorities, needs and gaps and will link to the global stocktake (Article 14). The transparency framework under Article 13 requires each party to provide information on adaptation. Furthermore, developing country parties are required to provide information on financial, technology transfer and capacity building support needed and received (Article 13.10). These actions have the potential to allow a global review of adaptation effort and if organized properly, could identify deficiencies in the system. The process for the reporting mechanism has yet to be determined and will be taken up as part of the work plan of the Ad Hoc Working Group on the Paris Agreement (paragraph 95(c), Decision 1/CP.21).

 

The second element of the review mechanism is the global stocktake. This is to be held every five years and includes adaptation and means of implementation (Articles 14.1 and 14.2). The purpose of the global stocktake is to enhance international cooperation for climate action. The first stocktake is to take place in 2023, although further work will be required to define its modalities of operation. The Ad Hoc Working Group on the Paris Agreement has been requested to identify the sources of inputs for the global stocktake (paragraph 100, Decision 1/CP.21).

The Working Group has been given some guidance with respect to reporting on adaptation through the accompanying decision in that it should consider the ‘state of adaptation efforts, support, experiences and priorities....’ (paragraph 100 (ii), Decision 1/CP.21). Compiling a global assessment of these parameters on adaptation could be a significant effort. Whoever undertakes this synthesis will have a considerable amount of work ahead of them.

 

The funding arrangements for adaptation in the Paris Agreement initially follow the traditional North to South obligations (Article 9.1). Nevertheless, there is a shift towards a broadening of support to incorporate all parties (Article 9.2). This is quite a dramatic step in the globalization of climate change cooperation. Nevertheless, it has implications for considerations of the historical responsibility for climate change. Undoubtedly some would contend that the Paris Agreement undermines the principle of common but differentiated responsibility and respective capability. How this will play out in the funding processes remains to be seen.

The particular sources of funding for adaptation are not clearly enunciated in the Paris Agreement. Decision 1/CP.21 reiterates the pledge of USD 100 billion per year by 2020 made originally in the ill-fated Copenhagen Accord, but this pledge is not focused on adaptation funding. It is placed in ‘the context of meaningful mitigation actions’ (paragraph 54 of Decision 1/CP.21). There are no similar pledges with respect to adaptation although the Paris Agreement states that scaled up financial resources should aim to achieve a balance between adaptation and mitigation (Article 9.4). The uncertainty over the sources of adaptation funding makes adaptation the ‘poor cousin’ in the Paris Agreement.

One concession that the agreement makes is that the Adaptation Fund ‘may’ serve the agreement subject to the relevant decisions of the Conference of Parties serving as the meeting of the Parties to the Kyoto Protocol and the Conference of Parties serving as the meeting of the Parties to the Paris Agreement (paragraph 60 of Decision 1/CP.21). This means that two approvals have to be reached before the Adaptation Fund can continue. Both institutions would need to decide the source of funding for the Adaptation Fund. Its primary source currently is the share of proceeds from the sale of certified emission reductions from the Clean Development Mechanism. It is unclear whether such an arrangement will be duplicated in the Paris Agreement. While a carbon trading mechanism or mechanisms are likely to be developed (as provided for in Article 6), it is unclear whether the carbon market will be a significant generator of enterprise within the Paris Agreement and whether a ‘share of proceeds’ concept will apply. Much work now rests with the Standing Committee on Finance and the Executive Board of the Green Climate Fund to determine how funding for adaptation will be apportioned and where this funding will come from.

In an interesting twist to the ‘vulnerability’ issue, least developed countries and small island developing states are identified in the finance section of the Paris Agreement as being particularly vulnerable to the adverse effects of climate change and having significant capacity constraints (Article 9.4).

 

The Paris Agreement creates greater accountability requirements for developed countries to provide quantitative and qualitative information on the support they provide for adaptation. This information is required to be provided biennially. It is interesting to note that other parties are also encouraged to provide similar biennial information (Article 9.5). This information should link with the global stocktake (Article 9.6).

 

All parties are required to submit and update periodically an ‘adaptation communication’ (Article 7.10) and that these submitted communications will be kept in a public registry maintained by the secretariat (Article 7.12). Having a generic term for an adaptation communication is the result of another divisive debate within the G-77 and China. There was contention whether or not parties should prepare intended nationally determined contributions (INDCs) (and hence subsequent nationally determined contributions) on adaptation. It appeared that many Latin American countries were supportive of requiring INDCs for adaptation.

In discussions with this group, it appeared that they supported this concept as a means of giving greater political prominence to adaptation within their national governments. A number of African countries were also keen to support INDCs for adaptation, although the least developed countries did not support this notion. The LDCs were concerned that they already had National Adaptation Programmes of Action and many had commenced writing their National Adaptation Plan. Adding a further reporting requirement would create an undue reporting burden. During the negotiations on adaptation, it appeared that most developed countries were not supportive of INDCs for adaptation as this diverted the political interest away from mitigation INDCs.

The Paris Agreement also requires that each party undertake adaptation planning processes, which may include national adaptation plans (Article 7.9). The inclusion of the word ‘may’ creates considerable flexibility in how adaptation will be carried out and reported. It will be interesting to see how all this information is collated and assessed.

 

The concept of collaboration with other institutions is an important element of the Paris Agreement in the context of adaptation action. While adaptation is generally considered as a country driven activity, it is inevitable that countries will seek external support for their endeavours. Article 7 of the Paris Agreement requires that all parties should strengthen cooperation on enhancing action on adaptation. A list of actions is defined within the agreement. These including sharing information on lessons learned, strengthening institutional arrangements, and help developing country parties identify effective adaptation practices (Article 7.7 (a-e)).

United Nations specialized organizations and agencies are encouraged to support efforts of parties identified in Article 7 (Article 7.8). While UN agencies already provide considerable adaptation support to countries, establishing an obligation within a legally binding agreement will provide greater impetus and incentive for the UN agencies to enhance their work in this important area. In prescribing this mandate to the UN agencies, they are given a subtle cautionary note to take into account important principles identified in Article 7.5 of the agreement. These principles include: a country driven, gender responsive, participatory and fully transparent approach, taking into consideration vulnerable groups, communities and ecosystems, and should be based on and guided by the best available science and, as appropriate, traditional knowledge, knowledge of indigenous peoples and local knowledge systems. This cautionary note to the UN agencies will hopefully ensure that they do not impose themselves too heavily into the adaptation planning processes of each country.

As an aside, it is important to note that both gender and the knowledge of indigenous peoples are recognized in the section on adaptation. Incorporating their issues and concerns within a legally binding agreement is another important step forward.

 

One of the trade-offs for enhanced support for adaptation is the increased burden of reporting for developing countries. This issue was a point of discussion within the adaptation negotiations. As noted earlier, some countries, particularly the least developed countries, already have considerable adaptation reporting processes. These include National Adaptation Programmes of Action and National Adaptation Plans. Article 9.7 of the agreement spells out various actions that parties should undertake and report on. These may include: national adaptation plans, assessments of climate change impacts and vulnerability, monitoring and evaluating and economic diversification and sustainable management of natural resources. While all of these actions appear to be logical processes within adaptation planning they do place a burden on countries with limited capacity to report on their efforts.

For small countries much of their effort on adaptation could be spent on reporting rather than actually undertaking action on the ground. The concern over the reporting burden is acknowledged within the Paris Agreement (Article 7.10). Undoubtedly small countries with limited capacity will not produce elaborate adaptation communications. As a consequence, there is a fear that these countries may miss out on adaptation funding because of the limitations of their reporting capabilities. This fear was evident during the negotiations and manifested itself within the negotiations concerning INDCs for adaptation. It will be interesting to see who receives priority for adaptation funding. Will it be provided to the most vulnerable or to countries that are more capable in writing adaptation communications?

 

One of the most innovative outcomes of the Paris Agreement was the section relating to loss and damage (Article 8). It was certainly one of the most controversial issues within the Paris Agreement. Article 8 of the Paris Agreement only contains five clauses. Nevertheless, it has significant implications for future work on loss and damage. It covers a broad spectrum of issues including early warning systems; emergency preparedness; slow onset events; events that may involve irreversible and permanent loss and damage; comprehensive risk assessment and management; risk insurance facilities, climate risk pooling and other insurance solutions; and non-economic losses (Article 8.4).

While Article 8 establishes loss and damage as a legally binding process as part of treaty law, the accompanying decision on loss and damage is likely to be the key driver for new and innovative work (Decision 1/CP.21, paragraphs 48 to 52). Of particular note are the provisions relating to developing a clearing house on risk transfer, and establishing a task force to address displacement.

The idea for a clearing house emanated from the least developed countries in a submission they made in 2014.4 There are many examples of risk transfer schemes in Africa and the Caribbean as well as national insurance funds and safety net programmes. Establishing a clearing house of these schemes will help countries and regions identify the best risk transfer opportunities that suit their needs. If done properly, the clearing house will be a major fillip for countries seeking access to risk transfer measures. Hopefully the insurance and re-insurance industry will be able to provide considerable support in this endeavour.

 

Another major outcome in the decision accompanying the Paris Agreement is the request to the Executive Committee of the WIM to establish a task force for integrated approaches to avert, minimize and address displacement related to the adverse impacts of climate change (paragraph 50, Decision 1/CP.21). Initially the least developed countries sought inclusion of this task force within the Paris Agreement. This was met with significant resistance from the European Union. It appeared to be one of the few issues where the European Union took a substantive position in the debate on loss and damage.

Due to sensitivities associated with refugees fleeing the war in Syria, the European Union appeared to be very reluctant to accept another category of displaced people. This is a highly regrettable position and one that the European Union may rue in the future. It is inevitable that more and more people will become internally and externally displaced by the impacts of climate change and action to deal with these people will need to be taken. This is not a new issue. Migration and human mobility had already been incorporated in the Cancun Adaptation Framework in 2010, although little work has advanced on this issue since the framework was established.5

Despite the resistance from the European Union, language on displacement was agreed by the COP. Work on this issue by the Executive Committee of the WIM has already commenced and is likely to fill the void created since Cancun. Establishing legal protection for people displaced by the impacts of climate change will be a substantial opportunity for the Executive Committee of the WIM and other interested groups and parties. While it is a new area of international law, there are opportunities to draw from existing institutions and processes. Some have suggested that Guiding Principles on Internal Displacement, and the various operational guidelines developed as part of the work of the Global Protection Cluster, apply to climate related internal displacement situations, and offer useful advice and guidance.6

 

The UN High Commission for Refugees has noted that the 1951 Convention relating to the Status of Refugees and some regional refugee instruments provide answers to certain cases of external displacement related to climate change, and these ought to be analyzed further.7 They have suggested however, that the term ‘climate refugee’ should be avoided as it is inaccurate and misleading. Work established under the Nansen Initiative could provide a useful basis for further work in providing appropriate protection for people displaced by the impacts of climate change although the Nansen Initiative also deals with so-called natural disasters.8

The Executive Committee of the WIM can provide a pivotal role in coalescing existing work in this field. In saying this, the Executive Committee will need to be mindful of work under the Sendai Framework for Disaster Risk Reduction and avoid overlaps.9 Collaboration with other institutions will be a critical role for the Executive Committee of the WIM. It will be important to avoid overlapping agendas and potential ‘turf wars’ over mandates and responsibilities. The real victims in such mandate disputes will be those affected by the impacts of climate change.

 

Overall, the nine key themes for responding to adaptation and loss and damage represent a substantial step forward in international environmental law. It creates significant new opportunities to assist countries build resilience and respond to the adverse affects of climate change. New initiatives such as those relating to a clearing house on risk transfer and a task force on displacement will provide considerable opportunities to afford appropriate protection for the most vulnerable. This work must progress at pace if it is going to meet the demands of a world confronting the ever growing threats of climate change. The challenge will be to find adequate and predictable funding to meet the growing needs of those affected by the impacts of climate change.

 

Footnotes:

1. Paris Agreement as contained as an annex to UNFCCC Decision 1/CP.21, FCCC/CP.2015/L.9/Rev.1.

2. UNEP, The Adaptation Gap Report 2014. United Nations Environment Programme (UNEP), Nairobi, 2014, p. 69, at xiv.

3. Bali Action Plan, Decision 1/CP.13, FCCC/CP/2007/6/Add.1.

4. Submission by Nepal on behalf of the least developed countries group on the ADP Co-Chairs’ Non Paper of 7 July 2014, on Parties Views and Proposal on the Elements for a Draft Negotiating Text. URL: http://www4. unfccc.int/submissions/Lists/OSP Sub missionUpload/39_99_1305844998175 51043-Submission%20by%20 Nepal% 20ADP_21%20Oct%202014.pdf, p4.

5. The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention. Decision 1/CP.16, FCCC/CP/2010/7/Add.1, paragraph 14(f).

6. Volker Türk and Alice Edwards, ‘Introductory Note to the Bellagio Summary of Deliberations on Climate Change and Displacement’, International Journal of Refugee Law 23(3), 2011, pp. 558-560, p 560.

7. UNHCR, ‘Summary of Deliberations on Climate Change and Displacement’, International Journal of Refugee Law 23(3), 2011, pp. 561-574, p. 562.

8. The Nansen Conference, Climate Change and Displacement in the 21st Century, Oslo, Norway, 5-7 June 2011, Norwegian Refugee Council, pp. 22.

9. The Sendai Framework for Disaster Risk Reduction 2015-2030. URL: http://www. preventionweb.net/files/43291_ sendaiframeworkfordrren.pdf.