International mechanisms for loss and damage

Briefing paper

Date produced: 04/09/2014

This Legal Response Initiative briefing paper focuses on the Warsaw International Mechanism for loss and damage associated with climate impacts, seeking to contribute to the discussion on possible elements of the Mechanism that might facilitate rehabilitation. Drawing upon existing international mechanisms in the environmental field through which redress for specific types of loss and damage can be sought, the LRI briefing offers some observations that may be relevant to the design of this Mechanism.

Drafted by an LRI team of lawyers, the briefing covers existing compensation and risk transfer structures created by the international community in circumstances where the loss and damage itself is cross-border. Legal structures to obtain redress for oil pollution damage and nuclear accidents are, among others, dealt with here. Whilst recognising that anthropogenic climate change is very different conceptually and practically to these particular regimes, the paper takes them as examples to illustrate existing approaches on loss and damage which may eventually inform present discussions on the Mechanism’s design.

The briefing outlines a list of criteria that would need to be addressed should the Mechanism extend to matters of compensation, rehabilitation and/or risk transfer. This include: causes and types of harm, basis of claim, who the claimant might be, types of redress and limitation on redress, among others.