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loss & damage, UN climate regime, environmental law, climate change


This article starts with an update on the UN climate negotiations with respect to loss & damage. It then explores two approaches to loss & damage that are substantially different form the current path of the negotiations. Both approaches seek to utilize the concern over loss & damage to improve motivation for an adequate and fair global effort to mitigation and adapt to climate change. The approaches differ mainly in the extent they can be integrated into the current UN climate regime. The first approach would create a loss & damage liability fund that seeks to ensure adequate resources to cover the projected cost of loss and damage of business as usual. The funds collected would then be made available for mitigation and adaptation efforts based on their ability to reduce the future cost of loss & damage. This approach is based on an idealized set of assumptions about what is achievable in the climate negotiations, and would require a completely new structure to the UN climate regime.

The second approach would limit the fund to loss and damage that is projected to be already locked in based on past and current emissions. It seeks to take into account the current state of the negotiations and the expressed or likely positions of key negotiating blocks, while seeking to preserve some opportunity to motivate Parties to contribute fairly to an adequate global effort. Either approach will be difficult to implement given the current state of the negotiations. However, given the global cost of inaction, if the current approach continues to yield results, the pressure to find alternative ways of moving forward will inevitably increase. The two approaches explored in this article are offered in the spirit of encouraging academics and negotiators to consider alternative ways forward if efforts under the current approach continue to be woefully inadequate.

Publication Abbreviation

Carbon & Climate L Rev