A legal case for loss and damage liability

Rina Kuusipalo, University of Cambridge

The term ‘loss and damage’ encapsulates an increasing recognition that climate change is causing devastating consequences of a scope we cannot always sufficiently anticipate. Mitigation of further emissions is crucial, and every effort must be made to adapt communities to reasonably foreseeable effects of climate change. But beyond this, ‘loss and damage’ acknowledges that while parties scramble to stop catastrophic climate change, communities are already suffering in the aftermath of its effects.

We know that the most burdensome impacts of climate change fall unduly on least developed countries, and communities that have the fewest resources to aid in recovery from such events. The most recent report from the Intergovernmental Panel on Climate Change (IPCC) confirmed both the manmade nature of climate change, as well as the devastating impact of climate change on the Global South. Vulnerable countries and groups are the claimants of loss and damage: claiming both irretrievable ‘loss’ (such as that of human lives, extinct species, and dead ecosystems) as well as ‘damage’ to things that are broken but still repairable (such as damage to infrastructure).

Apart from extreme events such as heat waves and floods, ‘loss and damage’ also encompasses ‘slow-onset’ phenomena such as rising sea levels, which threatens countries like Kiribati and Tuvalu. The need to address economic and non-economic loss, such as loss of cultural identity and heritage, in such contexts is apparent. Moreover, potential victims or survivors of climate change induced traumas ought to be included in the process of legally codifying ‘loss and damage.’

The international community has attempted to respond to climate crises under the UN Framework Convention on Climate Change (UNFCCC). While countries have nominally committed to climate finance, contributions, have not been sufficient to kick-start the Green Climate Fund, or to begin compensating the survivors of climatic events. The ‘loss and damage’ framework might help in this effort to safeguard resources for compensation and insurance for future catastrophic events by framing contributions not as charity, but as liability owed. An approach based upon the enforcing of legal obligation has the advantage of not being as dependent on the whims of fluctuating government opinions.

One fitting way to conceive liability would be as ‘reparations’ for damage: liability reflecting the proportional responsibility of countries for historically accumulated and presently manifesting emissions. Framing the liability in this way could avoid the issue of legal time limitations. The defendants in such a case would be wealthier, developed nations, whose contributions to fossil fuel emissions have accounted for roughly three-quarters of the total emissions since the industrial revolution. Despite current trends in the Global South, the per capita emissions in a wealthy country still remain multifold compared to a person in China or India.

A common doubt is: how do we calculate liability in such a complex context? One legal response might acknowledge that approximations of compensation for complex, non-economic liability are carried out daily in courts around the world. Unlike economics, which demands supposed certainty of facts, legal thought has for a long time engaged with elusive chains of causation, normative evaluations of what is “just, fair and reasonable” – even attributing liability for historical wrongs (the Mau Mau case). The ecological aspects of ‘loss and damage’ could be – in the absence of legal standing for nature – approached through legal public trust doctrines, as suggested by Mary Christina Wood in Nature’s Trust.

Moreover, a scientific and legal basis for liability already exists within the convoluted layers of UNFCCC – embodied in Article 3, which states that “in accordance with their common but differentiated responsibilities… the developed country Parties should take the lead in combating climate change and the adverse effects thereof.” The ‘Annex I’ Developed countries have nonetheless been hesitant to allow a textual admission of liability. While politically explainable, such ‘short-termist’ opposition will hurt the planet as a whole. Legally, it also stands in contrast to the very ideals on which the UNFCCC was built: a necessity perceived in the 1992 Rio Declaration (Principle 13) for states to cooperate on “international law regarding liability and compensation for adverse effects of environmental damage.” It seems that the UNFCCC has the legal mandate – and merely lacks the fortitude and the will – to step up to its role in allocating liability and compensation for ‘loss and damage.’