Climate-driven geophysical shifts are driving geopolitical shifts that are putting increasing pressure on international law and global governance. The recent landmark decision to establish an international “loss and damage” fund offers a glimpse into the challenges and opportunities presented by these ongoing disruptions.
Although there is no specific definition of “loss and damage” in international law, scholars and advocates generally define “loss” as that which is irreparable—“the complete disappearance of something,” such as lives, culture, and heritage. “Damage” refers to harms that can be repaired, such as bridges and buildings. Both result from failures to adequately mitigate and adapt to climate threats.
The loss and damage fund was created at the 27th Conference of the Parties (COP 27) hosted by the United Nations Framework Convention on Climate Change (UNFCCC), which met in November. The parties deferred decisions on the details of the “operationalization” of the fund, however, until next year’s COP 28. As a result, the fund’s creation is just the beginning of a long overdue reckoning with critical questions about who is responsible for paying for climate harms. This year’s devastating heat waves, droughts, and floods in Pakistan, India, and multiple countries throughout Africa demonstrate yet again that these harms are borne disproportionately by nations of the Global South, which have contributed the least to the climate problem. Had an effective loss and damage fund been in place and operational, these countries would have received critical resources necessary to save lives.
An overview of international climate law and the larger geopolitical dynamics surrounding collective climate action helps put the creation of this fund in context and conveys just how significant its creation is. That, in turn, provides insight into the ways in which this opportunity could be used to move climate justice efforts forward, through the use of climate science to support greater public scrutiny of the foreign policies of wealthy high-emitting nations and the application of laws outside of the UNFCCC regime.
Climate Responsibility and Geopolitics
Getting high-emitting nations to take responsibility for climate threats and harms has, to say the least, been elusive within the UNFCCC regime. This is not surprising considering that the United States—the highest historical emitter and the country most responsible for climate breakdown—has had an outsized influence on climate treaty design.
Nevertheless, many climate-vulnerable nations of the Global South, and particularly low-lying island states, have tirelessly advanced meaningful climate policies since before the UNFCCC was opened for signature, and these efforts culminated in the long-awaited establishment of the climate loss and damage funding mechanism at COP 27.
The UNFCCC, which entered into force in 1994, provides parties with a framework for implementing more specific binding agreements to achieve the goal of “stabilizing greenhouse gases at a level that would prevent dangerous disruption of the climate system.” A few of its principles reflect the global mismatch between climate responsibility and climate precarity.
First, the convention recognizes that a collective response is imperative and that this requires countries to respond individually “in accordance with their common but differentiated responsibilities and respective capabilities” (emphasis added). This principle is commonly referred to as CBDR-RC. Second, the convention states that developed countries—which emit the most carbon and have the capacity and moral obligation to respond since they accumulated their wealth by polluting the atmosphere—“should take the lead” in mitigating emissions. Finally, the convention calls on the wealthiest developed countries to “take all practicable steps to promote, facilitate, and finance” the efforts of developing countries to respond to climate threats.
The creation of the UNFCCC was certainly a promising step toward the necessary global response to dangerous climate disruption. But it would have been much stronger had the United States and other wealthy nations agreed from the outset to compensate vulnerable nations for disparate climate harms. Back in 1991, the United States and other wealthy nations rejected a proposal from Vanuatu—a tiny island nation in the South Pacific for which sea level rise presents an existential risk—that would have required wealthy nations to do so.
Unfortunately, U.S. opposition to effective international climate law didn’t end there. The first binding agreement negotiated under the UNFCCC—the Kyoto Protocol—was short lived because it contained a mitigation obligation structure that reflects the CBDR-RC principle. Opened for signature in 1997, the protocol required developed nations to meet specific reduction targets based on their historical contribution and gross domestic product, and it conditioned developing countries’ obligations on developed countries’ providing them with the funding necessary for them to respond. Many U.S. politicians and the fossil fuel industry roundly opposed the agreement on the grounds that it threatened U.S. sovereignty, national security, and economic interests.
In 1998, the U.S. Senate unanimously adopted a resolution prohibiting ratification of any UNFCCC treaty that contained mitigation mandates for developed but not developing countries. Although former President Bill Clinton signed the Kyoto agreement, he never submitted it for ratification, and President George W. Bush promptly withdrew the United States’ signature upon entering office.
Although the Kyoto Protocol finally entered into force in 2005 (without U.S. support), the parties soon began negotiations to develop an agreement that the United States would accept; indeed without the participation of the world’s highest historical emitter, an international climate treaty would be ineffective.
After years of contentious negotiations, developing countries eventually conceded to a new “undifferentiated” responsibility paradigm in the Paris Agreement, which entered into force in 2016. Instead of Kyoto’s mandatory emission reduction targets for developed countries, the agreement establishes a system of unilateral pledges known as “nationally determined contributions,” or NDCs: “Each Party shall prepare, communicate and maintain successive nationally determined contributions (to achieving the Agreement’s global temperature goal) that it intends to achieve.”
However, during the Paris negotiations, developing countries did finally secure a reference to “loss and damage” in a global climate agreement, albeit a vague one that left the details to be decided at future COPs: “The Parties recognize the importance of averting, minimizing and addressing loss and damage associated with the adverse effects of climate change.” Still, the United States insisted on qualifying this provision in the decision adopting the agreement as “not involv[ing] or provid[ing] a basis for any liability or compensation.”
At every COP since, the United States and other wealthy nations have refused to establish the mechanism necessary to get loss and damage funding flowing to the Global South’s climate-battered countries. At long last, on the final official day of COP 27, the European Union broke ranks and proposed such a fund. The United States was the sole holdout but finally signed on after the talks went into overtime.
Why Now? And What’s Next?
How did this landmark decision happen?
Because Pakistan, chair of the Group of 77 and China—the second largest intergovernmental organization after the U.N., which represents over 80 percent of the world’s population—led a united front that held fast to its loss and damage “red line,” with strong backing from civil society groups, according to longtime policy analysts and advocates. The fact that Pakistan is still reeling from months of catastrophic monsoon flooding also likely stiffened their resolve. Even though other factors likely contributed, this milestone in international climate law does seem to reveal some fault lines in geopolitical power dynamics that are impacting international law and governance.
While unquestionably a remarkable achievement in light of the decades-long resistance of wealthy nations, it remains a fund without funding and thus “is an empty bucket,” Mohamed Adow, executive director at Power Shift Africa, recently told reporters. “Now we need to fill it so that support can flow to the most impacted people who are suffering right now at the hands of the climate crisis.”
That, in turn, requires establishing legal climate responsibility, which over three decades of UNFCCC processes has thus far failed to achieve—when it comes to both mitigation and the duty to repair climate harms. An increasingly robust area of climate science known as “attribution research” bears the potential to help build momentum toward changing that trajectory.
Scientific Insights Into Climate Responsibility and Justice
The Intergovernmental Panel on Climate Change, the U.N. body charged with advancing scientific knowledge about climate change, devoted much of its most recent assessment report to explaining the significance of “attribution research” for understanding the consequences of anthropogenic climate breakdown—that is, climate modeling studies that tie human-caused climate disruption to existing and projected climate impacts on ecosystems, human society, and wildlife. Another type of study, known as “source attribution,” disaggregates the “human-caused” piece by “identif[ying] the relative contribution” of countries or companies to atmospheric greenhouse gas levels.
Researchers are increasingly drawing on both types of studies to link climate harms suffered by low-emitting, heavily impacted countries to high-emitting countries that could be used to inform law and policy. One recent study by Christopher Callahan and Justin Mankin, for example, attributed U.S. emissions alone to nearly $2 trillion in global income losses since 1990—losses that are concentrated disproportionately in the Global South. (Callahan and Mankin discussed their findings and implications for climate justice efforts in a previous Lawfare article, and we all joined a conversation on the Lawfare Podcast to talk about the nexus of science, policy, and law in climate justice efforts.)
Researchers could design similar studies to attribute other types of climate harms, including non-economic harms, to specific high-emitting nations (or companies), such as the deaths this year due to the heat waves in Pakistan and India or the flooding in West Africa. Attribution studies show that these catastrophic events were, respectively, 30 and 80 times more likely because of human-caused climate change. Adding source attribution would further demonstrate the injustice of these events and their associated impacts and reinforce calls for law and policy that properly account for climate responsibility and redress harms.
Nations must establish strong and effective obligations under the UNFCCC and the Paris Agreement, but this endeavor need not—and should not—be confined to UNFCCC processes. Indeed, these processes can be informed—and possibly buttressed—in at least two ways that draw on attribution research and the perspective it provides on climate justice
Building Public Understanding of Climate-Related Foreign Policy
First, attribution studies can help the U.S. public assess U.S. foreign policy positions in international climate negotiations, which better enables constituents to hold elected leaders to account. Such assessments are important for people of all nations to make. But they are particularly important for those of us in the United States, a country that has the notorious distinction of being not only the highest historical emitter but also, and not unrelatedly, the primary obstacle to science- and justice-based state climate responsibility, including that related to mitigation and repair of loss and damage.
The United States and the European Union, for example, appear poised to condition their loss and damage funding commitments on China’s undertaking such commitments. China, unsurprisingly, has made clear that it will not accede to such demands. If the United States and the European Union stick to this position, the fund will remain a bucket with perhaps a few symbolic drops from small countries such as Denmark and Scotland—far from what climate-precarious countries need right now.
Attribution research helps us assess this position. First, although China is now the world’s highest absolute emitter, the United States remains its highest historical emitter, which means it has the greatest responsibility for past and current climate harms. Second, the United States still emits far more per capita than China. Finally, as Callahan and Mankin’s research shows, some harms are attributable to U.S. emissions alone—to the tune of $2 trillion in economic losses, a sum that does not begin to account for the astronomical costs of recovering from increasingly frequent and intense climate disasters and the incalculable losses of life, dignity, and community associated with them.
Thus, although whether China should pay may remain open to debate, neither the United States nor the European Union is justified in refusing to pay its fair share into the fund on the ground that China does not. Indeed, such a position is downright cruel, given that the stance will indefinitely hold up distribution of critical funds that each high-emitting wealthy nation owes to nations of the Global South. Put simply, the United States can’t shirk its moral obligation to pay its debts on the grounds that it thinks another nation is.
Invoking Other Sources of Law Relevant to Climate Responsibility
Second, attribution studies and other sources of climate science can support the application of relevant non-UNFCCC sources of law to climate-disrupted realities. After all, many international legal obligations and domestic laws that support or enforce international obligations remain in force in a climate-disrupted world. They just need to be applied in order to determine what, if anything, they require in light of climate-related facts.
The natural institutional mechanisms for this task are not executive officials attending international climate meetings but, rather, courts. The UNFCCC remains essential—but it need not be the only international climate law game in town. And how little it has been able to achieve on its own to date strongly suggests that it cannot be if there is to be any hope of averting planetary catastrophe.
In recent years, a surge of cases across the globe have asked international and domestic courts as well as quasi-judicial venues such as the Human Rights Council to determine state and corporate responsibility for threatened and incurred climate harms under many non-UNFCCC laws. Although many of the arguments and decisions in these cases incorporate provisions of the UNFCCC and the Paris Agreement, the sources of liability thus far are international and domestic laws that have largely yet to be applied in the climate context.
Arguments and determinations about the applicability of these laws are thus part of the process of adapting laws to the facts of a climate-disrupted world—and science is a critical part of that task. These cases involve many important legal issues with significant implications for international law and global governance more broadly, including the nature of state and corporate legal obligations related to human rights, future generations, the environment, and ecosystems. Importantly, although in many cases it may make sense to incorporate aspects of the UNFCCC system into legal arguments about the climate-related content of obligations in other laws, that system need not be understood as limiting. The goal can, and often should, be to secure greater and more globally just protections than those currently provided for within the UNFCCC regime.
In these and other such cases, various types of attribution research can help determine the nature of state and corporate legal responsibility with respect to both mitigation and remedies for climate harms. Importantly, defendant governments and companies have made “undifferentiated” responsibility claims in many cases. That is, they argue that they cannot be held responsible for their emissions because they alone aren’t causing the problem. The Netherlands made such a claim in a case brought by a Dutch environmental organization seeking an order requiring the government to reduce emissions based on its obligations under the European Convention on Human Rights.
The Netherlands Supreme Court, drawing on climate science in applying various sources of international law, rejected the Netherlands’ defense. The UNFCCC’s CBDR-RC principle, it reasoned, entails a notion of “partial responsibility” that is supported by both the customary international law principle that countries “must not cause each other harm” and “national and international practice in the event of unlawful acts that give rise to only part of the cause of the damage.” This justification applies just as forcefully in cases seeking compensatory relief.
Courts’ development of laws in such cases could be further informed by advisory opinions of international tribunals weighing in on the import of various international laws for responsibility related to climate threats and harms. Early next year, the U.N. General Assembly will vote on Vanuatu’s resolution that the body seek an advisory opinion from the International Court of Justice on the nature of state climate obligations and the consequences of violating them under multiple sources of international law, including not only the UNFCCC and the Paris Agreement but also the U.N. Charter, human rights treaties, the U.N. Convention on the Law of the Sea, and customary international law. Vanuatu is also among the nations that have joined the newly launched Commission of Small Island States on Climate Change and International Law, a body with international legal personality established in an agreement between the governments of Antigua and Barbuda and Tuvalu. The commission is charged with “promot[ing] and contribut[ing] to the definition, implementation, and progressive development of … international law concerning climate change,” including by “request[ing] advisory opinions from the International Tribunal for the Law of the Sea.”
The intersection of law, policy, and climate science is a critical development that can further disrupt the pathological geopolitical dynamics that have so far undermined the UNFCCC’s potential for meaningful global climate action. It is imperative that climate responsibility and the concomitant obligation of repairing climate harms come to be understood as essential to establishing the rule of law—and ultimately being equipped to survive—in a world of dangerous climate change.
The relevance of science in supporting this critical development is, however, much different in the context of litigation than in the context of the UNFCCC-based loss and damage fund necessary to provide vital support to the countries that need it and thereby to make the necessary collective climate action possible. As is the case with respect to assessing U.S. foreign policies related to climate, the available science described above already tells us what we need to know in relation to the fund. It is nothing short of morally reprehensible that it took over three decades for the United States and other high historical emitter nations to agree to establish a fund to provide critical resources to countries that have suffered and will continue to suffer the most from the consequences of a fossil-fuel-based economy that has, ironically, provided wealthy nations with the greatest capacity to adapt to and recover from the fallout. It must not take years to operationalize the fund and to ensure that its design serves to forge climate justice; there is—literally—not enough time for that.
Hopefully, the shift initiated by the creation of the fund will be buttressed by the movement of international law more broadly and the foreign policies of the United States and other wealthy high-emitting nations in a progressive and more just direction. Humanity’s collective survival depends on it.