Loss & Damage from Climate Change: A Maturing Concept in Climate Law?
By Professor Meinhard Doelle
Canadian Chair and Head of Ocean Sustainability, Governance & Management
World Maritime University
With every passing year, the effects of climate change are becoming more obvious and severe. At the same time, efforts to reduce GHG emissions are still lagging far behind what is needed to avoid significant loss & damage, suggesting the worst is yet to come. Efforts to provide appropriate remedies for loss & damage in the UN climate regime have so far failed. While these efforts are ongoing, it is becoming increasingly clear that a broad range of international regimes and domestic legal systems will be challenged to respond to calls for appropriate remedies for those harmed by loss & damage.
Loss & damage is not defined in the UN climate regime. The phrase ‘loss and damage’ appears to recognize two categories of harm. One category involves permanent harm, or irrecoverable ‘loss’, such as the loss of landmass from sea level rise. The second category involves reparable or recoverable ‘damage’, such as shoreline damage from storms. Other ways the concept of loss & damage has been delineated is between economic and non-economic loss & damage, and between slow onset and extreme weather events. Regardless of the approach, the focus has been on harm caused by human-induced climate change itself.
To understand loss and damage, it is important to consider the relationship between climate mitigation, adaptation and loss & damage. It is well recognized that the level of mitigation (or GHG emission reduction) affects the scale of loss & damage. The more ambitious our collective mitigation effort, the less future loss & damage we will suffer. The relationship between adaptation and loss & damage is similarly close, but more complex. Adaptation can reduce loss and damage, but it often is not enough, and not everyone faced with loss and damage has the capacity to adapt.
The issue of displacement is illustrative of the complex inter-relationship between adaptation and loss & damage. If we take a hypothetical small island State that is unable to protect some or all of its territory from sea level rise, one might be inclined to view this as a failure of adaptation, and the resulting impact as loss & damage suffered by the residents of the affected small island State. However, the failure to protect its territory could either be as a result of technical adaptation limits, or it could be related to the lack of financial resources to implement the necessary measures.
Furthermore, how the small island State itself (in case of internal displacement) and the global community (in case of external displacement) responds to the loss of territory will ultimately affect the scale and distribution of the resulting harm. How much say do those displaced have over the preferred solutions? To what extent do the solutions cause loss & damage to others adversely affected by these solutions? To what extent do the solutions offer opportunities either to those displaced or to those who receive them? Is the focus on individual impacts or on collective loss & damage, such as loss of culture and community? Are efforts to find solutions for displaced persons to minimize their individual or collective loss & damage considered adaptation, or is adaptation limited to efforts to preserve the territory of the small island State? These are among the issues that arise in efforts to understand and delineate the complex relationship adaptation and loss & damage.
Efforts under the UN climate regime to fully integrate loss & damage into the Paris Agreement have been met with strong resistance from a number of developed countries. As a result, the future of loss and damage within the UN climate regime remains uncertain, and the prospects for addressing funding needs remain bleak.The focus of efforts under the Paris Agreement, for now, will continue to be on improving understanding of the challenge, and to explore non-monetary avenues to help Parties manage the impacts, not on compensating those harmed. It is not surprising, therefore, that attention is turning to other legal systems and regimes.
Attention to what avenues might exist outside the UN climate regime to pursue remedies for loss & damage leads to a range of conceptual questions. For example, within the climate regime, one might presume that the actors seeking remedies for loss & damage (if, indeed, remedies were to be available) would be states, although initial discussions tended to treat ‘vulnerable countries as populations’, rather than states. Similarly, under the climate regime, it has been presumed by most Parties, at least for now, that those who might have a responsibility to fund loss & damage are also states. Outside the climate regime, this clearly cannot be presumed.
As perspectives on loss & damage from outside the climate regime are considered, attention shifts to a wider range of actors and institutions, and new areas of law, that are all potentially relevant to the search for remedies. For example, what is the relevance, if any, of migration and refugee law, disaster law, law of the sea, or international human rights law, to the question of loss & damage for climate harms? What is the relationship between loss & damage, and climate justice? Many areas of law will be challenged to deal with loss & damage, and as a result, the issue needs to be considered from a great variety of perspectives.
Ultimately, many international and domestic legal regimes will be challenged to deal with claims for loss and damage from climate change. These legal systems will have to engage with some fundamental questions, and are well advised to prepare for the inevitable onslaught of claims. They will be challenged to deal with some key questions: Who are eligible plaintiffs? Who are appropriate defendants? What are actionable wrongs? What are appropriate remedies? Different legal regimes will make different choices on these critical issues, but for many, not being able to respond will be a challenge to their legitimacy.