Reading Between the Red Lines: Loss and Damage and the Paris Outcome

In: Climate Law
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For the least-developed countries and small-island states, excluding a standalone provision for loss and damage in the Paris Agreement constituted a red line, one that the negotiating groups refused to cross. For the developed world—and the United States in particular—any possible pathway to liability and compensation that a loss-and-damage provision might introduce was an equally bright and impassable red line. In the end, negotiators remained steadfast. Both lines remained more or less unbreached, and compromise language emerged in the Paris Outcome. This article describes the process leading up to the Outcome, the language included in the loss-and-damage provision and its implications, and identifies questions that remain. In particular, the absence of a clear funding stream, the treatment of climate-related displacement, and questions regarding compensation for climate impacts are not completely resolved. These are, perhaps, the most compelling, confounding, and impactful elements of the loss-and-damage debate thus far. Based on the conclusion of the Paris cop, they are likely continue to animate the loss-and-damage discussion for the foreseeable future.

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     See, e.g., John Upton, ‘Paris Pact May Hinge on "Loss and Damage" Dispute’, Climate Central, 11 Nov. 2015, at <www.climatecentral.org/news/dispute-threatens-paris-climate-agreement-19666>. As Upton notes, this fear dissipated as a published draft agreement included more conciliatory language, including language that would explicitly limit liability claims under the Paris Agreement.

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  • 21

    Ben Adler, ‘Here’s why the words "loss and damage" are causing such a fuss at the Paris climate talks’, Grist, 8 Dec. 2015, <http://grist.org/climate-energy/heres-why-the-words-loss-and-damage-are-causing-such-a-fuss-at-the-paris-climate-talks/>.

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  • 26

    Lisa Friedman, ‘Obama defends climate diplomacy, back aid for islands’, E&E Reporter, 1 Dec. 2015, <www.eenews.net/stories/1060028763>.

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    Julie-Ann Richards, ‘Paris climate deal needs solidarity on loss and damage’, Climate Change News, 11 Nov. 2015, <www.climatechangenews.com/2015/11/25/paris-climate-deal-needs-solidarity-on-loss-and-damage/>.

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     See Daniel Bodansky, ‘Legally Binding Versus Non-Legally Binding Instruments’, in Towards a Workable and Effective Climate Regime, edited by Scott Barrett, Carlo Carraro, and Jaime de Melo (London: cepr Press and Ferdi, 2015).

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