‘So what is your biggest concern going into Paris?’ Rolling Stone Magazine asked then US Secretary of State John Kerry in the run-up to COP 21 in Paris. Kerry answered: ‘I think [resolving the division between the] developed-and-developing-country piece is important. I think loss and damage will be complicated.’ John Kerry was
indeed right, but ultimately ‘loss & damage’ became established within the UNFCCC Treaty framework through Article 8 of the Paris Agreement. This provision has been the subject of much analysis. However, its impact on the construction of UNFCCC
provisions on ‘mitigation’ and ‘adaptation’ seems to have slipped under the radar.

Whereas ‘mitigation’ is often viewed as the first pillar of international climate change law, ‘adaptation’ is viewed as its second pillar. The adoption of the Paris Agreement added ‘loss & damage’ as a third pillar.

FIGURE 1: The three pillars of international climate change law

This introduction of ‘loss & damage’ at treaty level not only affects the notion of ‘loss & damage’ itself; it also has consequences for the two pre-existing pillars of mitigation and adaptation.

Firstly, ‘loss & damage’ provides a legal basis for finding ‘responsibility’ and thereby engenders a legal strengthening of the duties which the parties to the Paris Agreement assume within the fields of ‘mitigation’ and ‘adaptation’. This affects the very content and interpretation of the provisions on mitigation and adaptation, and, in particular, is likely to strengthen the legal basis for pursuing remedies aimed at reparation, such as supporting climate change funds and insurance solutions.

Secondly, prior to the adoption of the Paris Agreement, ‘loss & damage’ was essentially viewed as part of adaptation. However, with the establishment of ‘loss & damage’ as a third pillar of international climate change law, ‘loss & damage’ issues shall no longer be treated as matters of adaptation. This essentially means a material reduction of the scope of adaptation.

FIGURE 2: Mitigation, adaptation and the WIM before the adoption of the Paris Agreement

FIGURE 3: Mitigation, adaptation and the WIM after the adoption of the Paris Agreement

Thirdly, in particular the USA worked hard to ensure that the Paris Agreement’s new provision on ‘loss & damage’ would not establish a legal basis for liability and compensation. This ‘limitation’ was not introduced in the Paris Agreement itself, but only in paragraph 51 of the decision adopting the Agreement. However, it is not obvious that a provision in this decision can limit the Agreement itself – and even if it can, the Parties may revoke the limitation by having the COP adopt a new decision. Whereas adopting a new decision revoking or otherwise amending paragraph 51 is not going to be straightforward, adopting such a new decision is appreciably easier than amending the Paris Agreement as such.

Read the full article

Morten Broberg is professor at the Centre for International Law and Governance at the University of Copenhagen.