Abstract
In Research Handbook on Climate Change Law & Loss and Damage, editors Meinhard Doelle and Sara Seck address subject matter that is rapidly evolving, providing a range of perspectives and disciplinary concerns regarding loss and damage. The multi-jurisdictional nature of the Handbook, which is comprised of the perspectives of several contributing authors, holistically defines key terms and concepts and evaluates loss and damage through discussion of equity considerations and other challenges to measuring climate impacts. The contributors also address the disproportionate impacts and associated responsibility of contributions, including litigation issues and climate justice.
Doelle and Seck have split their text into three sections: Frameworks; Public International Law; and Domestic, Transnational, and Private International Law. The Handbook discusses common challenges faced by both domestic and international legal systems, including who might bring claims, what remedies might be sought, who the remedies might be sought against, and what the actionable wrong might be.
Frameworks, the first section, introduces ongoing impacts and appropriate remedies for those harmed by loss and damage, as well as the history of negotiations and resulting international environmental legal frameworks. Distributive justice is a recurring challenge during negotiations due to the inequitable distribution of historical emissions, climate vulnerability, adaptation, mitigation, and emergency response capacity. The section addresses how the concept of equity, fairness, and justice is lost as communities most vulnerable to climate change experience harm through little or no fault of their own, primarily as the result of others' actions. The disproportionate experience of negative climate impacts is discussed at length by category without ignoring the intersections between marginalized groups including gender, age, socioeconomic status and income, race, and indigeneity.
The second section, Public International Law, describes how loss and damage became a topic in international negotiations and the history of loss and damage under the United Nations Framework Convention on Climate Change (UNFCCC). To address concerns of loss and damage, the Paris Agreement reaffirmed the Warsaw International Mechanism for Loss and Damage to avert, minimize, and address loss and damage associated with climate change effects, including extreme weather events and slow onset events. To analyze the complex and interconnected environmental concerns in international law, the discussions in this section delve into the dynamics between the Global North and Global South. The two most common explanations for why international environmental laws have failed are the disagreements between the rich and poor or North-South divide, and a lack of political will to prioritize these environmental concerns. While several climate justice theories and assumptions are identified, the impacts of climate change on economics, politics, conflict, displacement, and other variables have not always been straightforward.
By examining the history and evolution of the UNFCCC's integration of loss and damage finance during negotiations, the section describes the process of establishing plans, mitigation measures, response measures, insurance-related workshops, and risk management frameworks proposed during the Convention of the Parties (COPs). The authors point out that discussions to operationalize a global loss and damage fund were based on the notion that developed countries have a legal obligation to provide financial support for climate action in developing countries. After weaving through the evolution of the climate finance framework, this section of the Handbook provides an explanation of the real and potential insurance schemes, risk-pooling, contingency funds, and other financial instruments available to public and private sector agents.
The fragmentation of the international community has resulted in global risks of food security, safety, and community resilience. In the past decade there have been steady developments in which parties have recognized the need to strengthen international cooperation, explore a range of approaches and mechanisms, and the necessity of strengthening institutional arrangements to protect human rights against climate-related harms. In this section, the Handbook comprehensively summarizes negotiation outcomes and prevalent political disputes that have slowed the process of establishing institutional mechanisms to facilitate financial flows between the Global North and Global South.
The final section, Domestic, Transnational, and Private International Law, the authors cover the efforts taken across the globe to harness a damages remedy to achieve mitigation goals. They explore the fundamental principle of public trust in climate litigation to construct a liability framework. The government, as a trustee, must protect the ecological resources that the public relies on including waters, shorelines, fisheries, wildlife, air, and the atmosphere. This section explores the different public trust claims and common law claims that have been brought by different entities for natural resource damages. In constitutional and administrative climate cases, loss and damage play a role with respect to admissibility, and the authors of the section identify three common issues that run through different cases: 1.) legal standing, 2.) the state's duty of care, and 3.) the burden and standard of proof in substantiating climate change and loss and damage. With different jurisdictions using different methods, protecting individual human rights has proven to be difficult. The section also explores key features of civil liability cases and how different legal systems are equipped to answer the complex questions associated with climate loss and damage liability.
Identification of noneconomic losses are both valuable and vulnerable to climate change, for example, life, health, and societal and cultural identity are instrumental in determining effective solutions to addressing the losses communities experience due to climate change. The concept of applying loss and damage equitably is a challenge when there is a global overreliance on economic valuation over other types of value. While climate change impacts cannot always accurately be identified, calculated, or compensated to attribute responsibility for harm done, the concept of loss and damage makes a gesture toward equity and justice, even if it's no more than a gesture to demand that the rich of the world take responsibility for the harm they have inflicted on others. Overall, the Handbook is a great resource for lawyers, policy makers, and negotiating parties involved in climate justice and equity considerations in both domestic and international law.