Legal Responses to Climate Change Induced Loss and Damage

Abstract

Legal issues are central to ongoing debates on Loss and Damage associated with climate change impacts and risks (L&D). These debates shed light, in particular, on the remedial obligations of actors most responsible for causing climate change towards those most affected by its adverse impacts. The aim of this chapter is to take stock of the legal literature on the topic, to identify potential legal approaches to L&D, identify challenges and to explore possible directions for further research. It looks at the feasibility of private and administrative climate change litigation while providing examples from around the world. Subsequently, we explore how human rights issues have been applied in international law to address L&D. The discussion particularly addresses the question whether the no-harm rule can be applied to climate change and would in fact trigger legal responsibility for greenhouse gas emissions. In addition, we examine relevant legal actions with relevance for L&D taken under the UNFCCC and the Warsaw International Mechanism on Loss and Damage. The chapter concludes with a synopsis of the various legal responses to L&D highlighting their premises, specific challenges and proposed remedies. Keywords Climate change litigation • Climate regime • No-harm rule Loss and Damage

The Paris Agreement's Approach Toward Climate Change Loss and Damage

“…Article 8.1 recognizes the role of sustainable development in mitigating the risks from L&D (First meeting of the Expert Group 2016; United Nations General Assembly 2015). 2 Not only does it link the efforts for addressing risk from L&D to other articles of the PA (i.e., Article(s) 2.1, 4.1, 7.1, and 10.5) but also connects them to a broader action plan for sustainable development; that is, UN Sustainable Development Goals (SDGs) (Sindico 2016, 135–36). In the preamble of the PA, the intrinsic relationship among actions, responses, effects of climate change, and fair access to sustainable development is emphasized, while the provision related to sustainable development in Article 8.1 once again affirms the importance of this concept (Sharma 2020, 73–74).…”

Harm to the global commons on trial: The role of the prevention principle in international climate adjudication

“…26 Second, environmental principles are considered too open-textured to be used in litigation. 27 The inclusion of the prevention principle in the preamble of the United Nations Framework Convention on Climate Change (UNFCCC) 28 can, indeed, be interpreted as merely aspirational. 29 Moreover, while Article 3 of the UNFCCC lists applicable environmental principles, it does not reference prevention, only precaution, and it does not create specific duties of care towards climate change.…”

Loss and damage and climate litigation: The case for greater interlinkage

“…34 Relying on what some scholars have termed an 'existential perspective', 35 vulnerable countries and NGOs have continued to advocate for liability and compensation throughout the lifetime of the UNFCCC and have consistently met with strong resistance from industrialized countries reluctant to engage on this issue. 36 Many industrialized countries have eschewed any discussion of responsibility and potential liability, and have instead advocated risk management and particularly insurance mechanisms as a principal and effective means to deal with loss and damage. 37 Discussions came to a head in 2015, when the COP expressly excluded liability and compensation under Article 8 of the treaty through paragraph 51 of its decision accompanying the adoption of the Paris Agreement.…”

“…109 Writing in the context of loss and damage, Simlinger and Mayer note, 'whether litigation leads to a favourable court decision or not, it contributes to raising awareness and creating political momentum for future developments'. 110 Similarly, Hunter contends that:…”