Whose ‘Loss and Damage’? Promoting the Agency of Beneficiary States

In: Climate Law

The discussions on loss and damage associated with climate change that opened up within the unfccc in recent years constitute the latest attempt of developing states to obtain something akin to compensation from major greenhouse gas emitters for the adverse social impacts of climate change. These discussions generally contemplate a mechanism financed by developed states that would provide direct support to individuals, corporations, and governments in developing countries (‘vertical’ approach), for instance, through insurance. This article argues that, for practical as well as normative reasons, a loss-and-damage mechanism should instead support vulnerable developing states, in a states-to-states ‘horizontal’ approach. Accordingly, financial support would be provided to developing states that incorporate vulnerable populations and are responsible for protecting them. Three sets of arguments are developed in support of this proposition. First, attributing loss and damage at the individual level is particularly challenging, whereas horizontal approaches allow consideration of probabilistic harm and compensation through bundle payments. Second, horizontal approaches are more suitable for pursuing goals such as economic efficiency, the reduction of loss and damage, the creation of an incentive for climate change mitigation, and broader goals of social justice. Third, vertical approaches go against prevailing principles of international law and involve unjustified interference in the domestic affairs of developing states.

  • 12

    Buchner et al.supra note 5 at iv.

  • 22

    Bodanskysupra note 11 at 528.

  • 35

    Ian BrownlieState Responsibility (Oxford: Clarendon Press1983) at 199.

  • 52

    Stone and Allensupra note 50. See also e.g. Pardeep Pall et al. ‘Anthropogenic Greenhouse Gas Contribution to Flood Risk in England and Wales in Autumn 2000’ 470(7334) Nature 382 (2011) proposing a ‘probabilistic event attribution framework’; Huggel et al. ‘Loss and Damage Attribution’ 3(8) Nature Climate Change 694 (2013); Myles Allen et al. ‘Scientific Challenges in the Attribution of Harm to Human Influence on Climate’ 155 University of Pennsylvania Law Review 1353 (2006).

  • 53

     See e.g. Pall et al.supra note 53 at 385 (arguing that ‘[b]y demonstrating the contribution of [greenhouse gas] emissions to the risk of a damaging event [the science of weather-event attribution] approach could prove a useful tool for evidence-based climate change adaptation policy.’).

  • 54

    Huggel et al.supra note 53 at 695. See also Hulme O’Neill and Dessai supra note 51 at 764–765 (on ‘uncertainty and subjectivity’); ipccsrexsupra note 48 at 8.

  • 56

    Pall et al.supra note 53 at 385.

  • 74

     See Buchner et al.supra note 5 at iv estimating that adaptation receives us$4.4 billion per year. By contrast net official development assistance reached us$134.8 billion in 2013 (and it was complemented by a substantial amount of private aid). See oecd ‘Aid to developing countries rebounds in 2013 to reach an all-time high’ available at <www.oecd.org/newsroom/aid-to-developing-countries-rebounds-in-2013-to-reach-an-all-time-high.htm>.

  • 76

     See for instance Pall et al.supra note 53 at 385.

  • 78

    Robinsonsupra note 78 at 798. See also e.g. David Kaye and Mikel Aickin ‘A Comment on Causal Apportionment’ 13(1) Journal of Legal Studies 191 (1984).

  • 81

    Farbersupra note 80 at 1256.

  • 86

    Robinsonsupra note 78 at 781. See also William M. Landes and Richard A. Posner ‘Tort Law as a Regulatory Regime for Catastrophic Personal Injuries’ 13(3) Journal of Legal Studies 417 (1984).

  • 93

    Farbersupra note 83 at 1654.

  • 94

    Ibid. at 1608.

  • 106

    Submission by the United States (2012) supra note 81 at 2.

  • 109

    Landes and Posnersupra note 87 at 434.

  • 113

    Landes and Posnersupra note 87 at 434 noting that ‘The problem of causal uncertainty and long delay between accident and full-blown injury could … be solved by moving toward a system where the accident victim sues and obtains a judgment before his injury is full blown.’

  • 116

     See in particular J. E. StiglitzGlobalization and its Discontents (New York: Norton2002).

  • 117

     See e.g. Fan Shenggen (ed.)Public Expenditures Growth and Poverty: Lessons from Developing Countries (Baltimore: Johns Hopkins University Press2008). This renewed confidence in the role of the state is epitomized by the recovery packages adopted by some states in response to the 2009 financial crisis.

    • Search Google Scholar
    • Export Citation
  • 121

    Crawfordsupra note 120 at 72. Thus Article 2(7) of the un Charter prohibits any intervention ‘in matters which are essentially within the domestic jurisdiction of any state.’

  • 124

    Hulme O’Neill and Dessaisupra note 51 at 765.

  • 125

    Submission by the United States (2012) supra note 81 at 2.

  • 128

    Buchner et al.supra note 5 iv showing that out of us$4.4 billion per year only about us$65 million are distributed through specific multilateral funds whereas us$3.6 billion are channelled by bilateral institutions.

  • 131

     See Gregory WhiteClimate Change and Migration: Security and Borders in a Warming World (New York: Oxford University Press2011). See generally Mike Hulme ‘Commentary and Response: Climate Refugees: Cause for a New Agreement?’ 50(6) Environment 50 (2008).

    • Search Google Scholar
    • Export Citation
  • 135

    Mayersupra note 128.

  • 143

    A. AnghieImperialism Sovereignty and the Making of International Law (Cambridge: Cambridge University Press2005).

Content Metrics

All Time Past Year Past 30 Days
Abstract Views 64 40 4
Full Text Views 122 110 3
PDF Downloads 15 13 1