Responsibility and liability for climate loss and damage after Paris

Abstract

This article considers the loss and damage provisions of the Paris Agreement emerging from the 21st Conference of the Parties (COP) of December 2015, and examines the extent to which they represent an innovation from the voluntary-focused Warsaw International Mechanism (WIM). It concludes that whilst on its surface the Paris Agreement very much continues the WIM approach, the combination of the reference to differentiated responsibilities, the inclusion of a loss and damage article within the main Agreement, and the refusal to allow this article to act as a basis for liability raises some legal and policy ambiguities. These ambiguities raise the question as to whether it is necessary or useful to develop a responsibility allocation mechanism (which need not give rise to liability) in order to assess differentiated responsibilities for loss and damage, and if so, how such a mechanism might be constructed. This article then goes on to consider two alternative approaches to loss and damage: an insurance-based approach and an approach based on the twin pillars of causal connection and fault. The difficulties of designing an allocation mechanism on the basis of causation and fault are discussed. Nevertheless, it is concluded that if, in the future, as seems likely, there will be increasing pressure to determine some sort of responsibility allocation, these issues will need to be grappled with head-on.Policy relevanceThe article demonstrates the need to develop policy which is sensitive to the fine balance struck in the Paris Agreement between responsibility and liability for loss and damage, and prompts an open discussion as to how such responsibility ought to be allocated. It suggests that without such an open discussion, the effects of the Paris Agreement in relation to loss and damage will be limited.