State of Climate Law∵The Third Pillar of International Climate Change Law: Explaining ‘Loss and Damage’ after the Paris Agreement

Morten Broberg

doi:10.1163/18786561-01002004

Abstract

With the 2015 Paris Agreement, ‘loss and damage’ (L&D) was introduced into the unfccc treaty framework as a new, third substantive area of climate change law. Both before and after its adoption, this new area has been subject to much contention—and this is reflected in a high degree of uncertainty surrounding its interpretation. This article examines the definition of L&D and the types of impact covered by the notion. It also examines the relationship of L&D with mitigation and adaptation, as well as the instruments that are covered by it. Finally, the article considers the controversial issue of who can invoke L&D—and against whom.

Highlights

When the unfccc was adopted in 1992, mitigation was established as the first pillar of international climate change law and adaptation as the second
I will consider the notion’s definition; following which, I will discuss the types of impact covered by L&D
3 Vanuatu: Draft annex relating to Article 23 (Insurance) for inclusion in the revised single text on elements relating to mechanisms (A/AC.237/WG.ii/Misc.13) submitted by the Co-Chairmen of Working Group ii,

Summary

Introduction

When the unfccc was adopted in 1992, mitigation was established as the first pillar of international climate change law and adaptation as the second. The introduction of a dedicated provision on L&D in the unfccc treaty framework was far from straightforward On the contrary, it was one of the most contentious issues in the Paris Agreement negotiations. The first discussions about the introduction of a scheme on L&D in the field of climate change were initiated by the Alliance of Small Island States during the negotiations that led to the adoption of the unfccc in 1992. While the scheme proposed by aosis was not included in the unfccc, the idea that the international community would need to consider compensation and insurance when addressing the effects of climate change took root. In 2008, at the request of awglca, the unfccc Secretariat produced a technical paper on ‘Mechanisms to Manage Financial Risks From Direct Impacts of Climate Change in Developing

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Conclusion