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Loss & Damage from Climate Change: A Maturing Concept in Climate Law?
Forthcoming in a special issue of Climate Policy: Loss and Damage after the Paris Agreement
Dr. Meinhard Doelle, Professor of Law at Schulich School of Law, Dalhousie University; Marine & Environmental Law Institute, Dalhousie University
Sara L Seck, PhD, Associate Professor and Associate Dean, Research at Schulich School of Law, Dalhousie University; Marine & Environmental Law Institute, Dalhousie University
Excerpt: Abstract through section 2 of “Legal Perspectives on the Future of Loss and Damage” [Reference list can be found in the original via the link above]
In this article we examine legal perspectives on remedies for harm caused by climate related loss and damage. We start by discussing the meaning of loss and damage, and its relationship to climate mitigation and adaptation. We then consider, at a conceptual level, how those harmed by loss and damage from human-induced climate change may pursue remedies against those who have contributed to the harm suffered.
Efforts to deal effectively with loss and damage (L&D) in the UN climate regime, and to provide for avenues to remedy associated harms, have so far failed (Siegele, 2017, Lees, 2017). While these efforts are ongoing, it is becoming increasingly clear that a broad range of international regimes and domestic legal systems will be challenged to respond to calls for appropriate remedies for those harmed by L&D. In this paper, we explore, at a conceptual level, the many issues that will arise as legal systems around the world are confronted with L&D claims. To provide some context for this analysis, we start in this introduction with a high-level overview of issues related to the scope and definition of L&D.
L&D is not defined in the UN climate regime. It has been suggested in the literature, however, that the phrase ‘loss and damage’ recognizes two categories of harm. One category involves permanent harm, or irrecoverable ‘loss’, such as the loss of landmass from sea level rise. The second category involves reparable or recoverable ‘damage’, such as shoreline damage from storms (CDKN et al., 2012; Morrissey & Oliver-Smith, 2013; Nishat, et al., 2013). Other ways the concept of L&D has been delineated is between economic and non-economic L&D, and between slow onset and extreme weather events (Fankhauser et al., 2014; Stabinsky & Hoffmaister, 2012). The focus has been on harm caused by human-induced climate change itself. A more controversial category of harm associated with climate change not clearly falling within the definition of L&D is harm caused by response measures, including by mitigation efforts, adaptation, and geoengineering.
A set of concepts that may help to further clarify the meaning and scope of L&D are the terms ‘avoided’, ‘unavoided’, and ‘unavoidable’ L&D, introduced by Verheyen (2012, p. 6) in one of the earlier research reports on the issue. ‘Avoided’ refers to the climate impacts prevented by existing mitigation efforts. ‘Avoidable’ refers to impacts that can still be avoided through enhanced mitigation and through adaptation. ‘Unavoidable’ L&D are impacts that are not preventable through future efforts. They are already inevitable as a result of past actions and cannot be avoided even with best efforts. Unavoidable L&D is also referred to as ‘locked in’.
It is important to consider the relationship between mitigation, adaptation and L&D. It is well recognized that the level of mitigation affects the scale of L&D. The more ambitious our collective mitigation effort, the less future L&D we will suffer. The relationship between adaptation and L&D is similarly close, but more complex. Indeed, when the Warsaw international mechanism for loss and damage associated with climate change impacts (WIM) was established, it was placed within the Cancun Adaptation Framework. The preamble of the decision by the Conference of the Parties (COP) establishing the WIM acknowledges that L&D arising from climate change ‘includes, and in some cases involves more than, that which can be reduced by adaptation’ (Siegele, 2017, p. 226; Lees, 2017; UN, 2014).
Adaptation efforts are critical to reducing the amount of L&D caused by climate change. Much can be done to assist those affected by climate change, both human and natural systems, to adapt. Ajustments to agricultural and forest management practices to deal with changes in temperature or precipitation patterns are among the many examples. Of course, not everyone affected by climate change has the necessary capacity, resources or other means to maximize adaptation opportunities. This means that there may be theoretical opportunities to avoid L&D through effective adaptation that are not realized (Van Den Homberg & McQuistan, 2019). This, in itself, makes it difficult to draw a clear line between adaptation and L&D.
The issue of displacement is illustrative of the complex inter-relationship between adaptation and L&D. If we take a hypothetical small island state that is unable to protect some or all of its territory from sea level rise, one might be inclined to view this as a failure of adaptation, and the resulting impact as L&D suffered by the residents of the affected small island state. However, the failure to protect its territory could either be as a result of technical adaptation limits, or it could be related to the lack of financial resources to implement the necessary measures. Furthermore, how the small island state itself (in case of internal displacement) and the global community (in case of external displacement) responds to the loss of territory will ultimately affect the scale and distribution of the resulting harm. How much say do those displaced have over the preferred solutions? To what extent do the solutions cause L&D to others adversely affected by these solutions? To what extent do the solutions offer opportunities either to those displaced or to those who receive them? Is the focus on individual impacts or on collective L&D, such as loss of culture and community? Are efforts to find solutions for displaced persons to minimize their individual or collective L&D considered adaptation, or is adaptation limited to efforts to preserve the territory of the small island state (Mayer, 2014; UN, 2014, McNamara, 2018)? These are among the issues that arise in efforts to understand and delineate the complex relationship between adaptation and L&D.
Efforts under the UN climate regime to fully integrate L&D into the finance, transparency and stocktake elements of the Paris Agreement have been met with strong resistance from key developed countries. This has important implications for the consideration of L&D in the future, particularly its role in the 5-year review cycles under the Paris Agreement designed to increase ambition over time. The future of the issue within the UN climate regime generally remains uncertain, and the prospects for addressing funding needs to actually address L&D remain bleak. The focus, for now, will continue to be on improving understanding of the challenge, and to explore non-monetary avenues to help Parties manage the impacts (UN, 2018; Siegele, 2017; Lees, 2017).
Attention to what avenues might exist outside the UN climate regime to pursue remedies for L&D leads to a wide range of conceptual questions that will be the primary focus of this paper. For example, within the climate regime, one might presume that the actors seeking remedies for L&D (if, indeed, remedies were to be available) would be states, although initial discussions tended to treat ‘vulnerable countries as populations’, rather than states (Mayer, 2014). Similarly, under the climate regime, it has been presumed by most Parties, at least for now, that those who might have a responsibility to fund L&D are also states (Gewirtzman et al, 2018; Siegele, 2017). Outside the climate regime, this clearly cannot be presumed.
As perspectives on L&D from outside the climate regime are considered, attention shifts to a wide range of actors and institutions, and new areas of law, that are all potentially relevant to the search for remedies. For example, what is the relevance, if any, of migration and refugee law, disaster law, law of the sea, or international human rights law, to the question of L&D for climate harms? What is the relationship between L&D, and climate justice? Many areas of law will be challenged to deal with L&D, and as a result, the issue needs to be considered from a great variety of perspectives.
Legal Perspectives on the Future of Loss and Damage
In this section, we consider L&D through the lens of potential legal and related strategies for those who have experienced climate harms. Specifically, we consider different ways to frame the harm suffered, potential actionable wrongs, remedies, and parties to a L&D dispute. We draw on experience to date from climate litigation and legal concepts drawn from other contexts such as insurance, which aims to spread risk while providing the insurer with the ability to sue a third party to recover costs paid out. However, the aim here is conceptual, in recognition of the fact that law must evolve to address climate L&D challenges, and domestic laws will differ from jurisdiction to jurisdiction. In many areas of law, it may be too early to predict the direction that litigants, courts, and law makers will take. The aim therefore is to explore options rather than to predict specific directions, approaches or outcomes in specific domestic or international legal systems. We have also consciously chosen not to adopt a particular theory to inform our exploration of L&D. However, as appropriate, we observe that some legal and related strategies will align more closely with climate justice or human rights-informed approaches to L&D, while others will suggest the potential of transnational or multi-level governance. Attention will also be paid to key foundational concepts such as climate vulnerability and adaptive capacity.
(1) Framing the Harm Suffered
Whether it is in the context of the WIM, insurance, funding mechanisms or liability, defining harm from L&D resulting from climate change will be critical. The approach taken to delineating harm from L&D will undoubtedly vary depending on the context, including whether the harm is reversible, whether it was avoidable, and perhaps whether it can be expressed in monetary terms. Moreover, courts faced with claims might reach a different conclusion on what constitutes L&D than an insurance or compensation scheme set up to protect farmers in a developing country from the risk of drought or flooding, for example.
One of the challenges will be to separate harm linked to anthropogenic climate change from other sources of the harm experienced. Extreme weather events such as wind storms will be amplified by climate change, but in many cases will not be solely attributable to it. Similarly, harm associated with heat waves, droughts, floods, coastal erosion, melting permafrost, melting ice, or warming oceans will be exacerbated, but may not always be solely caused, by climate change (IPCC, 2014, 2018). Health impacts may face similar challenges, depending on whether climate change introduces a whole new health risk (such as the introduction of a disease to a region) or exacerbates an existing risk (such as health impacts of heat waves) (WHO, 2018). Separating the impact of climate change on such harm will be among the challenges of dealing fairly with harm from L&D (Marjanac et al., 2017).
Harm related to displacement illustrates the challenge of separating harm linked to climate change from other sources of the harm. Consider a farmer in a developing country who is internally displaced after successive years of crop failure. The farmer’s plight may have been significantly influenced by climate change-induced droughts, flooding, storms or other changes to the climate system, but they may have also been influenced by changes in markets for the crops grown, unavailability of manual labour, or financial mismanagement of the farm.
The challenge of separating climate related harm from other sources of harm is, of course, not limited to harm that arises directly from the impacts of climate change. Similar issues arise with respect to harm caused by response measures to climate change, such as geoengineering. If ocean fertilization is attempted, for example, to increase the carbon uptake of the world’s oceans, such efforts have the potential to cause harm to those depending on ocean resources. A key challenge will be to decide which harms related to climate response measures to include under the concept of L&D, such as whether to include those affected by an inequitable transition or otherwise harmed by efforts to mitigate climate change.
A key potentially unifying concept in this regard will be how to separate L&D from baseline conditions. The details will vary, but in each case the harm will have to be assessed against what would have happened without anthropogenic climate change (Allen et al., 2007). The nature of the harm, whether slow onset or arising from an extreme weather event, will obviously be relevant to this assessment. Moreover, as part of this process, it will be crucial to address the temporal dimension when selecting the baseline conditions against which climate harms are to be measured: are harms to be measured from the beginning of the industrial revolution?
Arguments might be advanced that the baseline for measuring climate L&D should be the start of global efforts to reduce emissions in 1990, or the moment at which global temperature increases surpass the Paris Agreement’s 1.5 (or well below 2) degree goal. A related consideration is whether future harm will be included in the assessment of harm. If so, projections of future harm will be significantly dependant on mitigation efforts. More generally, it is far from clear whether the legal systems challenged to deal with harm from L&D need to prepare for harm caused by a 1.5 degree world, or 2, or 3, or perhaps even 4 or 5 degrees Celsius (Climate Action Tracker; IPCC, 2014, 2018)
Another key consideration is whether L&D will include only those impacts that have economic consequences, or whether it will extend to non-economic impacts, including cultural harms to indigenous peoples, for example (Fankhauser et al., 2014, Serdeczny, 2018). Clearly, from an indigenous environmental justice perspective, it will be essential that cultural dimensions of harm are acknowledged and included in L&D claims (Tsotsie, 2007; Watt-Cloutier, 2016). Other questions remain. For example, will claims for L&D include loss of state territory due to sea level rise or even loss of statehood (Rayfuse & Crawford, 2011)? Would L&D to natural systems be viewed as harms that warrant a remedy? Answering these questions might involve evaluating the benefits provided to humans by ecosystem services, including those which underpin human livelihoods, as well as the ethical considerations of human-induced harms to non-human species (Diaz, 2018; UNEP, 2016; Zommers et al., 2014).
(2) Potential Claimants
Closely related to the question of harm is who should be able to claim a remedy. The question of who has experienced harm will often arise in the context of litigation, but can also surface in the context of insurance and funding mechanisms set up to compensate victims. Entities that may experience harm as a result of unavoided L&D include states, sub-national government actors, as well as a variety of non-state actors ranging from individuals to organizations and communities. Examples of non-state actors who may be disproportionately impacted by L&D include indigenous and non-indigenous communities, migrants and refugees, children, women, and other vulnerable members of societies. Harm is, of course, not limited to humans, but includes human property as well as nature, from individual vulnerable species to whole ecosystems.
Not every entity potentially harmed by unavoided L&D will necessarily be entitled to a remedy. Any institution or legal regime that is asked to deal with unavoided L&D will be challenged to determine who will be eligible to seek a remedy; questions of legal standing will thus become important (Stone, 2010). Where those eligible include children, future generations and nonhumans, questions arise as to who will be able to seek a remedy on their behalf.
A related consideration is whether L&D should be conceptualized as private harms (to individuals or groups in their private capacity) or as public harms (to societies as a whole, including future generations, or to public goods like ecosystems), or both. The global and transnational scale of climate harms further suggests that insights as to the nature of claimants from both public and private international law will be relevant, alongside those from domestic legal systems.
For example, it is clear that states are harmed by climate change, with some states, notably small island developing states (SIDS), being particularly vulnerable. International tribunals, such as the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), and the Permanent Court of Arbitration, may grant standing to states who may bring claims for violations of their rights under international law (Bodansky, 2017; Strauss, 2009; Voigt, 2016).
Alternatively, the concept of erga omnes obligations at international law suggests that claims could be brought by one or more states on behalf of the international community as a whole for harm to the climate system or areas beyond national jurisdiction (Brown & Seck, 2013; UN, 2001, art. 48). A public international law perspective that conceptualizes L&D as a crime would not obviously provide an opportunity for plaintiff states to bring L&D claims to the International Criminal Court, although prosecution of climate crimes has garnered scholarly and activist attention (Centre for Climate Crime; Ecocide Law Expert; Gallmetzer, 2017; Jodoin & Saito, 2011). If conceptualized as crimes, domestic statutes that implement international criminal law raise a theoretical opportunity for domestic prosecution of climate crimes, or, where parallel civil liability regimes exist, for individuals and groups that have experienced climate harms to seek a civil remedy (Wanless, 2009).
Private international law also offers insights into the nature of potential plaintiffs in transnational civil liability actions. For example, in many jurisdictions, foreign plaintiffs may bring claims provided that there is a real and substantial connection to the jurisdiction in which the action is brought. The presence of the defendant in the jurisdiction would often be a presumptive connecting factor, although judges may have discretion to decline to exercise jurisdiction on the basis of forum non conveniens or similar doctrines (see generally Amnesty International, 2014; Byers et al., 2017; Seck, 1999). Another procedural consideration of relevance to delineating the plaintiffs in L&D litigation is the use of class action certification, which allows an individual plaintiff to file an action on behalf of themselves and others who are similarly situated. This access to justice mechanism is already in use in youth climate litigation (e.g. Trudel, Johnston & Lespérance). In the future, questions may arise as to whether or how to delineate a global class in a L&D case, as has been the case in the consumer protection context, for example, where all consumers who suffered the same harm may be able to recover from a single settlement agreement. (e.g. Global Class Actions Exchange; Clopton, 2018).
A different issue may be whether particularly vulnerable claimants should be given priority to claim a remedy over claimants who are in a more privileged position, and if so, how this might be achieved. For example, if any vision of climate justice is to be taken seriously, access to justice for L&D for the most vulnerable must be a priority. (Adelman, 2016; Humphreys, 2014). It appears problematic, then, that comparatively privileged claimants who reside in a developed country that is also the home state of a corporate fossil fuel defendant, should face fewer legal hurdles than those that would confront a more climate-vulnerable plaintiff who happens to reside in a least developed country where no comparable defendant company has sufficient presence to ground jurisdiction. This is particularly problematic as those who reside in a least developed or most vulnerable country context may also face a lack of governmental capacity to offer adequate remedies to those who suffer from L&D. Moreover, individuals within these vulnerable states may be those who have contributed least to the climate problem on a per capita emissions basis, may not have benefited from economic and social wellbeing built up over years of fossil fuel extraction, or may live in isolation from the economic engine that drives greenhouse gas (GHG) emissions, as is the situation with many indigenous communities. Ultimately, the question is whether everyone should be entitled to L&D remedies, or whether access to climate justice should only – or first – be available to vulnerable groups within developing countries, or perhaps to the south within the north (e.g. indigenous peoples). In an ideal world, it would be possible to adequately compensate all who suffer harm, or otherwise provide a remedy. In our very imperfect world, however, it is more likely that defendants will seek bankruptcy protection before full compensation has been paid out – if any has been paid at all (Benjamin et al, 2019). Furthermore, is there a duty on claimants to take steps to mitigate climate harms? In cases where such a duty is found to exist, a follow-up consideration is the extent of such a duty. For example, would a person suffering harm from climate change have a duty to relocate? Under what conditions? Different legal systems can be expected to reach different conclusions on these difficult questions, yet a lack of coordination among jurisdictions may leave the most vulnerable without access to justice.