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

In: Climate Law
Author: Maxine Burkett1
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  • 1 Associate Professor of Law, William S. Richardson School of Law, University of Hawai’i,
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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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